It's a bit more complicated than that. Provenance is critical... but then can you claim copyright infringement based on 8-note, 12-beat sequences? Surely e.g. Katy Perry claimed that her song is original, but courts decided (based on expert opinion) that it's too similar for this to be true. "My 8-note sequence was first, so you probably copied it!" is, unfortunately, a thing - I would have no problem if Marcus Gray proved provenance - but he didn't. The entire proof of provenance is based on "I was first, and yours is similar".

I would think that after this project is complete, at the very least arguments like those that lost the "Dark Horse" case should become not-acceptable in courts. Let Marcus Gray actually prove provenance, not infer/ speculate it - and all would be fine.