The music industry has seen a boom in infringement claims during the digital streaming era. In the words of the legal community, “copyright infringement cases are not uncommon, and have made a comeback in recent years.” Ed Sheeran is awaiting a jury trial over $100 million for copying Edward B. Townsend. Robin Thicke and Pharrell Williams lost a $5 million judgement for copying Marvin Gaye. The accessibility of music has altered the applicability of legal rules in copyright law. Independent creation as a defense has been incredibly weakened by these changes. For a leading example take the opinion in Bright Tunes Music Corp. v. Harrisongs Music, Ltd. The court in Bright Tunes “examined the protectability of two ‘very short basic musical phrase[s]’ combined together” and held that copyright infringement may be found even when it is “subconsciously accomplished.” Because of the dramatically wider scope of accessible music via digital streaming, one may subconsciously copy nearly anything they could have possibly heard. The question presented now is how have the courts responded to rebalance the fairness of infringement claims? One way appears to be turning away from the inverse ratio rule.
In short, the inverse ratio rule “requires a lesser showing of substantial similarity if there is a strong showing of access.” In March, 2020, the Ninth Circuit Court of Appeals decided Skidmore as Tr. for Randy Craig Wolfe Tr. v Led Zeppelin, which made for a strong precedent in rejecting the inverse ratio rule as a response to digital streaming. What the Appellate Court noted in their opinion is that in “a practical matter, the concept of ‘access’ is increasingly diluted in our digitally interconnected world.” Thus, one may prove access by a simple showing that something is available on demand or on streaming platforms. Because access is now nearly guaranteed, courts have begun to reject access rules that were applicable in the past. In previous settings, the less available nature of accessing music (such as through physical copies, radio waves, or live performances) made courts believe the inverse ratio rule was an effective jury instruction. But now there is always a showing of access, and “[t]o the extent “access” still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity.” Justice M. Margaret McKeown stated in the opinion, “[b]y rejecting the inverse ratio rule, we are not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity.” Here, we see a prominent example of the courts devaluing the influence of access based on the new setting of digital streaming.
As music becomes more abundant and accessible, the law will need to adapt to keep the environment fair. Some suggest the law may not be able to keep up. Copyright in music has become frustratingly unpredictable already. “[O]ne who denies they intended to copy can still be held liable, whereas one who intends to copy, but does not cross the line into ‘substantial similarity’ can avoid liability altogether.” The commoditization of music by an intangible form has superseded the original framework of the Copyright Act, and now rulings such as Skidmore are among the efforts to modernize it.