Evidence in Copyright Trials, Blurred Lines Edition

A couple of years ago, everyone had an opinion about the Google v. Oracle copyright case but few looked at the actual evidence presented in the case to inform their opinions. It turned out that the evidence was quite different than the press was saying. Fast-forward to a relatively huge copyright jury verdict in the Williams v. Bridgeport Music case (better known as Blurred Lines copyright case - Gaye v. Thicke and Williams), and I see the same thing happening.

I've read a lot of opinion about the verdict, such as chilling effects (which are sure to be there - don't get me wrong). But I've also read many people say that we just can't hold folks liable for copying a "vibe" or copying Gaye's percussion and background vocals because those weren't protected copyrights back then.

I agree with these sentiments. But I wonder, is that the evidence the jury heard? If this is a bad verdict (and I have no opinion on that), why is it a bad verdict? I am not convinced by the opinions I've read on the topic, because most of them seem contrary to what I understand the admissible evidence to be. Thus, I can't tell if the jury got it wrong on the right evidence, the jury got it wrong on the wrong evidence, the jury got it right on the right evidence (no one seems to think this, except the winners and the jurors, maybe - we'll see about the judge or appeals court), or whether it should have gone to a jury in the first place. I'll elaborate on the evidence after the jump.

So, why am I scratching my head over the evidence? Let's start with the idea that you can't hold someone liable for the "vibe" or even for the sound recording, because Gaye never registered the sheet music in extra elements that appear in the recording.

My problem with this discussion is that it's unclear to me that the jury ever heard the full Marvin Gaye song. I suppose they might have heard it before the trial, but that was question #4 for potential jurors. At the very least, the full song doesn't appear to have been evidence in the case. The court ruled that any sound recording played must have unprotected elements stripped out. The only commentary on the trial I have seen to mention the stripped down version came from the Rolling Stone.

So, did the expert testify that it was the vibe that was copied? I doubt it. I haven't read the transcript (though it's now in PACER), but the expert report discussed by the Court on summary judgment identifies detailed points of argued copying by one expert that were rebutted by the opposing expert. The jury heard and believed one expert over the other.

But if you look at what the experts say were copied, it doesn't amount to that much, so maybe that's a problem. Interestingly, that might not matter that much, because the infringement determination can turn on whether so much is as pleasing to the lay listener is copied -- and no expert gets to testify about that! Maybe that's what people mean by vibe, but the jury instructions require more similarity than that. The jury found no infringement of a second song; if the vibe was the only reason, one would think that this song might have been infringed as well.

This is where I circle back. People have strong feelings about this case. Most people I know think it was wrongly decided. But I think that copyright law would be better served if we examined the evidence to see why it was wrongly decided. Should the court have ruled that the similarities presented by the expert were simply never enough to show infringement? Should we not allow juries to consider the whole composition (note that this usually favors the defendant)? Should we provide more guidance to juries making determinations? Was the wrong evidence admitted (that is, is my view of what the evidence was wrong)?

But what I don't think is helpful for the system is to assume straw evidence - it's easy to attack a decision when the court lets the jury hear something it shouldn't or when the jury ignores the instructions as they sometimes do. I'm not convinced that's what happened here; it's much harder to take the evidence as it is and decide whether we're doing this whole music copyright infringement thing the right way.

Update: This post, from Robert Fink, a musicologist and music professor at UCLA is an outstanding analysis of the role that the expert testimony in this case played in the verdict and whether that was right or wrong. It is this type of analysis, I think, that we should be using to question how we consider copyright and music -- and how we prove infringement.