Tuesday, June 28, 2016

The Song Remains the Same: Jury Finds for Led Zeppelin in Stairway to Heaven Case

Copyright Suit Fails To Take Off, But Zeppelin Is Flying High

A federal court jury in Los Angeles last week found in favor of Robert Plant and Jimmy Page of Led Zeppelin, concluding that the iconic rock anthem Stairway to Heaven did not infringe the copyright of the song Taurus by the band Spirit.

Under copyright law, an author of an original work of expression who sets it down in a tangible medium (like a book, a recording, a movie, or even a blog post) has exclusive rights to exploit that work during the term of the copyright. The key issues for this lawsuit were whether Led Zeppelin had access to Taurus and copied from it, and thereby infringed the copyright holder's exclusive rights. While the jury found there was access, they found that there was no prohibited copying. (For more on copyright law, the U.S. Copyright Office has a good primer here.)

While the verdict was welcomed by the defendants, I am sure that they were not too excited about going to California for the trial, especially after the judge ruled prior to trial that although the two songs were not strikingly similar, a jury could conclude that they had access to Taurus and that the songs were substantially similar. Had they lost it would have been a real heartbreaker, but instead the day of the jury verdict was a celebration day.

The suit presented some interesting facts. First, the Taurus songwriter made the claim in the early 1990s that Led Zeppelin used the song but never brought suit. It was his estate that filed the suit in 2014, after the Supreme Court ruled that copyright infringement cases could proceed even after long delays. Second, the recording itself was not at issue, only the musical composition, as the copyright law did not protect sound recordings at the time. Third, there was testimony that the two bands had appeared on the same concert bill on a few occasions. Fourth, Jimmy Page admitted that he owned a copy of the album that contained Taurus.

The judge allowed the claim to go to trial because he found there was enough "similar protectable expression" in the first two minutes of each song to allow a jury to assess if they were substantially similar -- which the jurors did not find. At least to my untrained ear, they sound quite similar starting about 44 seconds into Taurus. In fairness, Stairway to Heaven clocks in at about 8 minutes and Taurus at about 2 minutes, 37 seconds. In other words, viewed as a whole, Zeppelin's song -- the Moby Dick of classic rock and roll anthems -- has a lot more to it than the classic opening. Want to listen for yourself? Here are links to Stairway to Heaven and Taurus:

This scenario is not atypical in music, and the case law is replete with similar claims of copying. I recall a famous musician saying years ago that there are only so many chords and so many ways to arrange them. And like all art, music inspires others; indeed, some songs are intended to pay homage to the original. The infringement occurs, however, when the line is crossed from inspiration and homage to copying. 

How many times have you listened to a song and thought that it sounded like another song? Tom Petty described this phenomenon last year, when word emerged that Sam Smith had agreed to credit Petty and Jeff Lynne of ELO for songwriting on Smith's hit song Stay With Me because it sounded like Petty's hit I Won't Back Down. Here is what he had to say:
About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam. All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam's people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. And no more was to be said about it. How it got out to the press is beyond Sam or myself. Sam did the right thing and I have thought no more about this. A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all.
One of the more famous copyright cases involving music is the suit against George Harrison claiming that his 1970 solo breakout hit, My Sweet Lord, infringed the copyright of the 1962 hit He's So Fine by the Chiffons. Harrison went on to lose the case and was found liable for "subconscious infringement." Here is what the judge said:
Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.
In response to his experience, Harrison wrote This Song, which provides his take on the affair. It is a fun song and commentary, and here it is:

By the way, I was going to title this blog post "And Now for Something Completely Different," but I was not sure if Monty Python would claim copyright infringement and sue me. . . .

Tuesday, June 21, 2016

The Constitution Was Established On This Day In 1788

Constitution Day is celebrated on September 17, the day in 1787 when the Delegates to the Constitutional Convention in Philadelphia signed the Constitution. But did you know that the Constitution became effective 228 years ago today, on June 21, 1788? That is the day it was ratified by New Hampshire, the ninth state to do so and the deciding vote needed to make it effective. Thus today is the day we should actually recognize the Constitution, because its ratification was by no means assured. 

The Constitution grew out of efforts to revise the Articles of Confederation, which had serious defects and created a weak confederation of what George Washington described as “[t]hirteen Sovereignties pulling against each other. . . .” The need for unanimity to amend the Articles was one of its defects, so the Framers avoided the need for ratification by all the States. In order for the Constitution to become effective, Article VII provided that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” 

Ratification was no easy task. During the ratification period a series of amendments that we know as the Bill of Rights were promised to win over several States. In addition, the celebrated Federalist Papers were actually a series of essays promoting ratification published in New York newspapers. New Hampshire’s ratification put pressure on the remaining four States, but the vote was very close in New York, and North Carolina and Rhode Island did not ratify until after the new government commenced operations in March 1789. But eventually all thirteen States ratified. 

And the rest, as they say, is history.

Tuesday, June 14, 2016

Extraordinary Supreme Court Ruling Settles Obamacare Contraceptive Mandate Case

The Supreme Court’s Role is to Decide Cases and Controversies, Not Push Settlement to Avoid Tie Votes 

Using a highly unusual and unorthodox approach, the Supreme Court recently resolved a series of related cases by essentially telling the parties to settle a dispute about whether the Affordable Care Act’s (ACA) contraceptive mandate violates the freedom of religion of faith-based groups. The Court's handling of the case demonstrates why the Court should stick to its traditional approach of deciding cases and not focus on how the results will be perceived.

Zubik v. Burwell involved several appellate court rulings that, with one exception, had ruled against the religious freedom challenges. This was the second case involving the mandate to reach the Supreme Court. In the first case, the Supreme Court held two years ago in Burwell v. Hobby Lobby Stores that the mandate, as applied to private corporations, violated the Religious Freedom Restoration Act of 1993, a federal law designed to protect religious freedom. 

In Zubik, nonprofit organizations opposed to the mandate claimed that the opt-out process substantially burdened their exercise of religious freedom. Until Justice Scalia passed away in February, most observers expected that the same majority of five justices from Hobby Lobby would rule against the mandate in the current case. But after oral argument, when it appeared that the Court was split 4-4, the Supreme Court issued a highly unusual order on March 29 instructing the parties to advise it if this matter could be resolved without the Court having to decide the case. Here is what the Court said:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained . . . in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees. . . . For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. . . . The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing. . . .
A 4-4 vote would mean that there would continue to be different results for people depending on where they live due to the conflicting lower court rulings, because when a tie occurs the lower court judgment is simply affirmed. While this does not necessarily promote the uniformity and clarity that the Court might prefer, it is the rule that the Court applies when it is evenly split. 

To say the Court’s March 29 order was highly unusual is a vast understatement, and at this point it was a foregone conclusion that the Justices would dispose of the case without ruling on the merits. I thought that perhaps they would do so by declaring that the case was moot, as they do in some cases in which the controversy is no longer ongoing, or that further development of the record was needed in the lower courts, or even by having the case reargued. 

Having decided, however, that a 4-4 tie was not desirable since at least one appellate ruling against the contraceptive mandate would survive, the Court ignored these prudential options, which would have had a similar effect. Instead, in an unsigned opinion for the entire Court, the Justices essentially told the parties to settle the dispute and directed all of the lower appellate courts to “allow the parties sufficient time to resolve any outstanding issues between them.” The Court’s words make it clear that it wants the matter settled:
In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below. . . . Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage." . . . The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance.
The last sentence is jarring -- the Court is saying settlement is better than deciding the case. While this may seem like a reasonable way to resolve the matter, that is not what the Supreme Court does. The parties are always free to settle; but that is not the Supreme Court’s role. Its job is to decide cases and controversies. In fact, I cannot recall the Court taking this approach in other cases, and the Court has had other tie votes in the past. Indeed, the Court announced it was split 4-4 in a hotly contested and closely watched case about union fees on the very same day -- March 29 -- that it ordered the parties to advise the Court how Zubik could be settled. That meant the lower court ruling in the union fees case was affirmed.

I find this settlement approach especially disturbing because Chief Justice Roberts expressed intense disdain for such judicial machinations at his confirmation hearing. At that time he made a point of stating that he viewed judging as umpiring, and not worrying about results.
Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. . . .  I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it's my job to call balls and strikes, and not to pitch or bat.
Somewhere along the way his view changed, and his concerns about public perception of the Court and the ACA have produced some strange results. Having rescued the ACA the first time around by stating that the individual mandate was constitutional as a tax, and then in a subsequent case upholding federal exchanges under the ACA by telling us that state means state or federal, it probably should come as no surprise that the Chief Justice did not want a 4-4 split leaving the ACA unsettled with respect to the contraceptive mandate. But if a tie is how the game ends, then the Chief Justice has told us that is what happens and we should accept it. Except, I guess, when it comes to the ACA, for which he surely has demonstrated an intense desire, and gone to great lengths, to see the law survive.

It has been said that hard cases make bad law. Perhaps in the case of the ACA, for this Chief Justice, it is that a bad law makes for hard cases.

Sunday, June 5, 2016

When the Highest Court in the Land Ruled for the Greatest: Clay v. United States

Supreme Court Overturned Ali’s Conviction for Failing to Serve in the Military

After declining to be inducted because he was a conscientious objector, Muhammad Ali was convicted in federal court in 1967 of failing to submit to induction into the armed forces. He faced a fine and a jail term, and was stripped of his boxing titles and unable to box for several years. Ali’s conviction was affirmed by the court of appeals the following year.

The Supreme Court ruled unanimously in Ali’s favor in 1971. The government conceded in the Supreme Court that Ali’s belief was both based on his religion and sincere, two of the three requirements to sustain conscientious objector status. This allowed the Court to reverse the judgment because it was unclear upon which basis Ali’s claim had been decided by the State Appeal Board.

In pursuing his conscientious objector status, Ali engaged in the freedom of conscience that is enshrined in the Bill of Rights. He also accepted the consequences of his actions without bitterness and with grace. According to news reports, when asked after his Supreme Court victory if he intended to sue after being kept out of boxing while his case was appealed, he said no -- both sides did what they thought was right.