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RIAA Court Filing In Stairway To Heaven Case Warns Against OVERPROTECTION By Copyright

from the pigs-are-flying-over-hell's-frozen-tundra dept

Tue, Nov 13th 2018 9:33am — Mike Masnick

Here's one you don't see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over "Stairway to Heaven" that we've been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin's "Stairway" did not infringe on the copyright in the Spirit song "Taurus." While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case -- in part to fix the 9th Circuit's weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.

As with the Blurred Lines case, I've been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it's actually kind of an important way for most musicians to develop), and if that's seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.

And... that's actually what it's done. The RIAA and the NMPA (National Music Publisher's Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360's Bill Donahue, who first spotted this.

Anyway, who among you ever expected the following in an RIAA brief:

Copyright law thus needs to carefully calibrate and balance its rules to prevent both over- and underprotection. Composers’ intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed. The panel opinion badly overprotects, and in doing so is inconsistent with other federal appeals court decisions that have addressed the same issues.

Who are you and what have you done with the real RIAA?

Other parts of the RIAA brief (and I can't believe I'm saying this) make the same argument I've been making about this case (and the Blurred Lines) case for years:

This Court should also correct the precedent set by the panel allowing findings of infringement based on the use of uncopyrightable elements. Most compositions share some elements with past compositions—sequences of three notes, motifs, standard rhythmic passages, arpeggios, chromatic scales, and the like. Likewise, all compositions share some elements of “selection and arrangement” defined in a broad sense. The universe of notes and scales is sharply limited. Nearly every time a composer chooses to include a sequence of a few notes, an arpeggio, or a chromatic scale in a composition, some other composer will have most likely “selected” the same elements at some level of generality.

To keep every work from infringing—and to keep authors from being able to claim ownership of otherwise unprotected elements— this Court has stressed that selection and arrangement is infringed only when there is virtual identity between two works, not loose resemblance. The same principle should be recognized for music.

The brief goes into more detail -- again more or less repeating what I said in my original post, but with a bit less swearing (okay, 100% less swearing) -- on why it's crazy to argue that non-protectable works should be analyzed in determining if there's infringement:

The panel opinion concluded that the instruction nonetheless erred, on the theory that such common elements could still be protected if “used in combination with other elements in an original manner,” slip op. at 20, as a form of creative “selection and arrangement,” id. But all compositions will share some elements of “selection and arrangement,” defined in a broad sense, with some earlier compositions. To prevent nearly every new composition being at risk for liability, copyright claims based on “original contributions to ideas already in the public domain,” Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), are seen as involving a “thin copyright that protects against only virtually identical copying.” Id. at 812; see also Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (“When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with . . . a ‘thin’ copyright, which protects against only virtually identical copying.”); Rentmeester v. Nike, Inc., 883 F.3d 1111, 1128-29 (9th Cir. 2018). This Court has long recognized this principle in claims involving visual art that allegedly creatively combines public domain elements, as with the sculptures in Satava or the photographs in Ets-Hokin and Rentmeester. The same should apply to music.

I also agree with the RIAA in saying that the "inverse ratio" rule is incredibly stupid. This is the rule adopted by some courts that the amount of "substantial similarity" necessary to show infringement decreases with the amount of "access" the accused infringer had to the original work. But, as the RIAA notes, that makes no sense (especially these days):

Indeed, while as a practical matter few composers create works that are strikingly similar to older ones, nearly all composers enjoy a striking level of access to a vast range of works: They hear them online, on the radio, at concerts, at home, and elsewhere. Indeed, they may hear them without ever seeking them out—played as mood music in elevators, supermarkets, and restaurants, or as incidental music in a film or in a television or radio commercial. Yet even if hearing the songs this way counts as a “high degree of access” (itself a vague concept that juries would have a difficult time applying), that should not allow the creators of new works to be sued under a “lower standard of proof of substantial similarity,”

And, finally, I agree with the RIAA that it would be a mistake to let a jury hear the recordings to compare the two songs. The case is not about the copyright in the sound recordings, but in the composition (which are not the same). And the problem with the sound recording is that it includes the unprotectable/public domain content, and that can be hard for a non-professional jury to separate out. The RIAA agrees:

Here, for instance, the panel agreed with Judge Klausner that the jury should not be allowed to determine substantial similarity by comparing Stairway to Heaven to Spirit’s sound recording of Taurus. Slip op. at 25, 31, 34. Unsurprisingly, Judge Klausner concluded that, because of this, it was better for the jury not to hear the sound recording at all, especially since hearing the sound recording would do vanishingly little to help the jury determine anything else (such as access).

Finally, the RIAA (correctly!) calls out the very weird part of the 9th Circuit ruling that suggested that as an alternative to allowing the jury to hear the sound recordings, they should be allowed to observe Led Zeppelin's Jimmy Page listening to the recordings "to evaluate his demeanor." As the RIAA points out, this is utter nonsense.

The panel rejected this judgment call on the grounds that “allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings.” Slip op. at 34. But is this really so?

Imagine Page sitting there, relistening to the recording of Taurus (which he had already recently heard when preparing for the trial, III ER 502). The jurors are watching his demeanor, an unusual thing for people to do when they are listening to a song together with someone. What would they be looking for on his face that would in any way bear on the question whether he had heard the song nearly 50 years before, in 1967 to 1971? Is there some supposedly tell-tale facial expression that captures the reaction, “Yes, I had heard that song back then”?

Anyway, thanks to Led Zeppelin and Professor Volokh for actually creating a scenario where the RIAA and I are mostly on the same page -- and that page is warning about the negative consequences of overprotection of copyright in harming artists and limiting cultural output.

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Filed Under: blurred lines, copyright, eugene volokh, inspiration, led zeppelin, overprotection, public domain, spirit, stairway to heaven, taurus
Companies: riaa

36 Comments

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Anonymous Coward, 13 Nov 2018 @ 9:43am

if the RIAA is coming out with this, given how they are globally known as being nothing but a lying, self interested organisation, it's for specific reasons which will be of future benefit to it and only it, with the addition of being able to screw as many people as possible to the wall or into jail as possible!

the next thing, the MPAA will be allowing external subtitles and fan based video! yeah, right!
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Anonymous Coward, 13 Nov 2018 @ 9:47am

"But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far."

Let's be real here. The *only* reason the RIAA is stepping up to this is because the 9th Circuit ruling would put them into the cross hairs of legal fights for *decades* to come.

Every single label is probably sweating bullets right now, and frankly, serves them right. I hope the 9th Circuit ruling stands.

Yes, it'll suck, but the best outcome: entities like the RIAA will actually get off their fucking asses and force Congress to fix the broken copyright law they fucking contributed to.

I have no empathy for the RIAA, MPAA, and any other gatekeeper who'll get their asses kicked by this ruling.

Poetic motherfucking justice.
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Michael, 13 Nov 2018 @ 9:48am

"What would they be looking for on his face that would in any way bear on the question whether he had heard the song nearly 50 years before, in 1967 to 1971?"

I'm pretty sure Facebook has some AI that can identify that facial movement.
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Anonymous Coward, 13 Nov 2018 @ 9:49am

Analyzing non-protectable works

on why it's crazy to argue that non-protectable works should be analyzed in determining if there's infringement

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I.T. Guy, 13 Nov 2018 @ 9:49am

Oh you can bet someone is getting fired over this.
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Anonymous Coward, 13 Nov 2018 @ 9:52am

Analyzing non-protectable works

on why it's crazy to argue that non-protectable works should be analyzed in determining if there's infringement

That's not what he said. He was talking against basing protection on the arrangement of non-protectable works. There's at least one very important reason why non-protectable works should be analyzed in determining whether something's infringement: it could reveal that you copied from a public-domain source rather than whatever you're accused of infringing.
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Dr D.O. OOM, 13 Nov 2018 @ 10:11am

"RIAA and [Maz] are mostly on the same page"
either DOOM LOOMS or is just the activist commie-lib 9th, the most over-turned circuit got the double-think tangled in their heads and put it on paper.

The Maz is over-joyed because at last he's been proven "right" -- by the same liberal extremists whom he usually favors (esp on "immigration") going too far.

He'll use this one instance forever more for "See? SEE? ALL COPYRIGHT IS EVIL! EEEEVIL!"

However, overturning this does NOT have any obvious implications for the body of copyright law, let alone Masnick's notions that nearly all other copyright cases are wrongly decided and copyright should be abolished.

By the way, review of the prior piece here will disclose that myself wisely refrained from comment.
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Dr D.O. OOM, 13 Nov 2018 @ 10:16am

Re: "RIAA and [Maz] are mostly on the same page"

myself wisely refrained from comment.

Yes, I relapsed. The Maz has a certain masnickal knack for drawing me out, I give him that -- so you should blame him for his writing style.
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Anonymous Coward, 13 Nov 2018 @ 10:17am

My feet are cold...

Hell, did you freeze over?
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Anonymous Coward, 13 Nov 2018 @ 10:23am

Re: "RIAA and [Maz] are mostly on the same page"
Oh look, you're still lying.

https://www.politifact.com/punditfact/statements/2017/feb/10/sean-hannity/no-9th-circuit-isnt- most-overturned-court-country-/
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bob, 13 Nov 2018 @ 10:27am

Re:
Agreed. They probably saw how they will then be involved with countless lawsuits because every studio/artist, will start going after each other.

"Hey my song wasn't a big hit, but hers is, she must have ripped me off because some parts are similar."
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Berenerd (profile), 13 Nov 2018 @ 10:55am

I am willing that they had some intern at the end of their stay that didn't get hired after is just punking the RIAA now. We will see it in the 11 news soon.
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Rico R. (profile), 13 Nov 2018 @ 11:09am

The REAL reason the RIAA filed this response
“Copyright law only applies to file sharers and streaming services that underpay us in royalties. Whenever an artist of ours is unjustly accused of copying a song, we of course will stand with artists to stop them from being sued to oblivion by this system we helped create.”

Now if only they’d stand with artists when they publicly state they’re okay with people downloading their album when it leaks or ripping their own songs from YouTube...
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Anonymous Monkey (profile), 13 Nov 2018 @ 11:32am

OMG
I never though I'd see the day ...

0_0
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Stephen T. Stone (profile), 13 Nov 2018 @ 1:05pm

Yeah, uh…your obsession with Mike Masnick is on you, not him. You’re the one who lacks the self-control necessary to stop turning your mental illness into words on a forum.
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crade (profile), 13 Nov 2018 @ 3:09pm

balanced copyright and RIAA can't coexist
If there ever was a real need the RIAA once served it no longer applies.

unbalanced copyright law is the only thing keeping the RIAA around..
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Toom1275 (profile), 13 Nov 2018 @ 4:36pm

Re:
"Let's make sure that rogue creators can't devalue the products of our indentured workforce."
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Anonymous Coward, 13 Nov 2018 @ 4:51pm

Re: Re:
The problem, I think, isn't so much people getting sued - the problem people who get sued have the ability to fight back. It's the antithesis of copyright enforcement. Why else would the RIAA insist on chasing the very people they know can't put up a fight (children, senior citizens, etc)?

The RIAA were the original copyright trolls and now they're getting what's been coming to them for a long while.
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Uriel-238 (profile), 13 Nov 2018 @ 4:55pm

The (allegedly) infringing work is more popular.
Since Stairway makes more money than Taurus it only makes sense that they're trying to finagle how to allow Stairway to stay legal without Spirit's label controlling it.

The interesting part is if this sets a precedent for future works. I betcha the labels don't want that to happen.
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Anonymous Coward, 13 Nov 2018 @ 5:08pm

Re: "RIAA and [Maz] are mostly on the same page"
Did you pay Marvel for usage of their copyrighted character name, blue boy?

You fucking freetard.
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Anonymous Coward, 13 Nov 2018 @ 5:28pm

Judges without a degree in Music History should not be on the panel of eleven if they are making judgements without help of experts in that field.
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Anonymous Coward, 13 Nov 2018 @ 5:34pm

Re: The REAL reason the RIAA filed this response
Yeah if they would stand with artists who are ok with you ripping and streaming... their music and live performances, YOU WOULD NEVER HAVE TO BREAK OUT YOUR WALLET?? IS THAT RIGHT??
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Anonymous Coward, 13 Nov 2018 @ 5:36pm

Re:
I would like to see your psychiatric diploma for that comment..
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Anonymous Coward, 13 Nov 2018 @ 5:39pm

Re: "RIAA and [Maz] are mostly on the same page"
This techdirt forum could be cause for mistrial for biasing a jury.
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Anonymous Coward, 13 Nov 2018 @ 5:40pm

Re:
If judges without degrees or expertise in tech can rule in favor of the RIAA and choose not to evaluate their IP harvesting methods, then judges without any musical background are fully qualified to give their opinion here.

Your heroes at the RIAA now have to sleep in the bed they made and took a shit in. Sucks to be you!
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Anonymous Coward, 13 Nov 2018 @ 5:44pm

Re: Re: Re:
Led Zeppelin was hit or miss on some songs and it always seemed like FM stations always played their worse songs over and over.. just my opinion.
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Anonymous Coward, 13 Nov 2018 @ 5:49pm

Re: Re:
..every studio/artist. will start going after each other..

No, the rights owners who had NOTHING to do with the songsss, but who make 97% of the revenues off others' blood and sweat will start going after each other(!)
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Anonymous Coward, 13 Nov 2018 @ 8:26pm

Re: Re: "RIAA and [Maz] are mostly on the same page"
Sup Johnny boy. You fresh off another psych hold?
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Anonymous Coward, 13 Nov 2018 @ 8:27pm

Re:
Thems is some sour grapes.
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Anonymous Coward, 13 Nov 2018 @ 8:28pm

Re: Re: The REAL reason the RIAA filed this response
I would be willing to bet real money you thought that was a clever gotcha comment.
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Anonymous Coward, 13 Nov 2018 @ 9:12pm

Demeanor

"Is there some supposedly tell-tale facial expression that captures the reaction..."

Hell, we do that in criminal trials all the time where guilt or innocence is often determined by what a jury thinks of the defendants "demeanor". If it's good enough for life or death decisions, why is it not good enough for civil "money" decisions?
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Anonymous Coward, 14 Nov 2018 @ 12:57am

Re: Re:
And I would like to see your Bachelor's in English for the usage of those words.

Hint: you don't need a Ph.D to call out obvious stupidity.
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Anonymous Coward, 14 Nov 2018 @ 3:27am

Re: Re: Re:

No, the rights owners who had NOTHING to do with the songsss, but who make 97% of the revenues off others' blood and sweat will start going after each other(!)

Only after they have destroyed the self publishing movement, and restored their control over content.
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Anonymous Coward, 14 Nov 2018 @ 4:32am

I knew it!
Mike Masnick is also a secret shill for the RIAA!
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Rico R. (profile), 14 Nov 2018 @ 1:22pm

Re: Re: The REAL reason the RIAA filed this response
Well, let's see... This year I downloaded a leaked version of Owl City's Cinematic (which was leaked on May 31, less than 24 hours than it's official release on June 1 here in the US) when I already had it pre-ordered on iTunes ($10) AND on Vinyl ($25), with concert tickets already purchased for September (2 tickets for $33 each, plus a $5 fee and $14 insurance). Sounds like according to you, I must owe Adam Young an additional amount of money for my ILLEGAL act of downloading an album leak ON TOP OF the $120 I spent on the full album experience I had already paid for...

Did I really not break out my wallet enough times? Am I depriving poor independent musician Adam Young of money? Is that download considered a lost sale? The answer to the above is all no.

Not every big artist is as protective of their music like Taylor Swift is. If I recall properly, Brendon Urie of Panic! At the Disco replied to a tweet of a fan complaining he couldn't afford to pay to download their latest single to literally rip it from YouTube. Miley Cyrus stated on Jimmy Kimmel that she doesn't care whether or not people downloaded her album when it leaked. But the RIAA detests all these actions a fan might take. Copyright maximalism is a double-edged sword, and all the RIAA wants to do is stop it from cutting themselves while they continue to allow it to cut others.

The point is, if copyright was abolished tomorrow, fans of any artist would still pay for copies of albums and concert tickets to support the artist. Copyright doesn't factor into that logic, and it has NOTHING to do with an artist making money.
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I ask myself, 15 Nov 2018 @ 12:16pm

Re:the ring
Should I put on the ring out of spite just to watch these people who loved “overprotection” to the point of malice have it turned ion them out of spite just to see the horror on the faces of them?

Or do I throw it in mount doom?

...this will take a while.
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