Wherein Some Bad Old Mistakes Are Fixed, but Led Zeppelin Need Suffer No Longer

The last couple of times I blogged about the “Stairway to Heaven” case, I was defending the Ninth Circuit’s decision to send the case back down to the trial court for a re-do, even though Led Zeppelin was likely to prevail again.6OK, but in that last one, I was starting to agree it wasn’t worth saving. It was too bad Led Zeppelin would have to go through the trial all over again, but the Ninth Circuit was moving away from one of copyright law’s more pernicious mistakes: thinking that “copying” can be proven by the defendant’s “access” to the work and the “substantial similarity” between the two works.

What’s so pernicious about this idea is it mixes up and mixes together two distinct concepts: factual copying and wrongful copying.

What’s exciting is the Ninth Circuit found a way to fix this mistake, jettison the “inverse-ratio” rule, have a grown-up conversation about “scope of expression” (especially in the context of songwriting), all without making Led Zeppelin suffer. Instead of sending the case back down for a re-trial, the entire Ninth Circuit (as opposed to a normal three-judge panel), known as “en banc,” just stepped in and fixed everything.7Actually, I think the Ninth Circuit is so large that even “en banc” doesn’t include every single judge.

I think the amici deserve a lot of credit for getting the Ninth Circuit to take these issues seriously and giving them the necessary perspective.