Two hours was barely enough to cover the main issues, about half of which were legalities and procedural, and the other half musicological. This case involves about 1800 songs and 180 defendants!
First thoughts are a bit comforting, the judge in this case, the Honorable André Birotte Jr., is pretty on top of things. He’s no neophyte. He spoke easily about the dancehall, reggae, and reggaeton genres; was a DJ himself in his college days, knows a lot about Hip Hop and sampling, and said he’s no expert, but you could’ve fooled me. Whatever the ruling, I won’t likely be saying the judge didn’t know what was going on. It was interesting I suppose that he asked the plaintiffs if what they were pursuing would have the effect of discouraging creativity across Reggaeton and other genres. Perhaps that’s a tell, since copyright’s purpose of course is the opposite, and the defendants took the opportunity to emphasize it themselves later in the hearing.
Things I’ve harped on were well handled by Bad Bunny’s attorney Kenneth Freundlich — that the complaint fails to adequately distinguish audio sampling infringement claims from compositional similarity claims; and that the particulars of selection and arrangement claims set against the paucity of protectable elements involved here (as few as none let’s say). Freundlich explained the filtering concept, and even performed a little percussion while making a concise prior art argument. He covered a lot, but I certainly agree with him that it’s all understandable enough for the judge to rule.
I’ll make at least one prediction — that after the judge goes back and reads the transcript, all that will take a significant bite out of this case.
A lot of this may depend on more procedural matters. Arguments about inadequate pleadings seemed persuasive enough to me, but as a musicologist, I selfishly hope that’s not what ends this. I also don’t want it to come down to who owns or registered the copyright in “Fish Market,” “DemBow,” “PounderRiddem,” or “Pounder Dubmix 2.” In terms of forensic musicology and this case, they’re all essentially the same. I’d rather have rulings that advance discussions around similarity, and the thresholds for Selection and Arrangement cases. Of course, I’m a forensic musicologist! I want a musical argument. And I’d hate to lose the momentum that copyright judgments in the past few years have built, moving things away from throwing up our hands and saying, “Everything’s a tossup.”
See ya in two weeks I guess.
