The Rhetoric of Predictability: Reclaiming the Lay Ear in Music Copyright Infringement Litigation

[Excerpt] “Some things cannot be described. This is the theory that recent literary criticism has placed as its cornerstone. Philosopher-critic Roland Barthes identified this trend in his Mythologies, stating that critics often “suddenly decide that the true subject of criticism is ineffable, and criticism, as a consequence, unnecessary. Unfortunately, this view has become singular within the legal academy whenever an author discusses music copyright infringement analysis. It seems that scholars fear the thought of trusting a jury with such an “ineffable” subject as music and must propose alternatives, such as expert testimony, specialized courts, or mechanical analysis, that will diminish the ability of a jury of lay ears to determine what is or is not substantially similar. This article proposes that the simplest and best approach to music copyright infringement litigation is to accept the jury‘s determination of substantial similarity in its most classic form. Part II of this paper will explore the development of the current standards that the federal courts use in music copyright infringement cases. Part III will survey scholarly reactions to these standards, detailing and categorizing the variety of proposals put forth by different authors. Part IV will describe the shortcomings and unnecessary complexity of these proposals, advocating for the simplest and original approach put forth by the courts in Part II.