Rethinking Music Copyright Infringement in the Digital World: Proposing a Streamlined Test after the Demise of the Inverse Ratio Rule
![handle is hein.journals/urich55 and id is 1111 raw text is: COMMENT
RETHINKING MUSIC COPYRIGHT INFRINGEMENT IN
THE DIGITAL WORLD: PROPOSING A STREAMLINED
TEST AFTER THE DEMISE OF THE INVERSE RATIO
RULE
[T]he dissent prophesies that our decision will shake the foun-
dations of copyright law, imperil the music industry, and stifle
creativity.1
INTRODUCTION
I simply cannot copy your song if I have never heard it before. In
a hypothetical world in which I truly had no exposure to your mu-
sical composition, any eerie similarities between our two songs
must necessarily be the product of our own individual imagina-
tions. Indeed, copyright law protects such independent creation.2
Determining that one song was copied from another, therefore, re-
quires two things: that the songs be too similar, whatever that
means, and that the second author have had some kind of access
to the first author's work.3
In reality, however, songs can only be so similar before a rational
person will start to suspect that one songwriter must have had ac-
cess to the other songwriter's work-even if that access cannot be
proven. When the similarity between two songs is high enough, we
begin to infer access even in the absence of evidence.4 On the other
1. Williams v. Gaye, 885 F.3d 1150, 1182 (9th Cir. 2018). Despite the majority's dis-
missal, time showed the dissent to be eerily prescient.
2. E.g., Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-46, 348 (1991).
3. Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125 (9th Cir. 2018); Rentmeester v. Nike,
Inc., 883 F.3d 1111, 1117 (9th Cir. 2018).
4. Rentmeester, 883 F.3d at 1124.
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