Intellectual Property and Synths.

[Equilibrium]

I'm an attorney with experience in patent litigation and copyright litigation (defended Napter, for instance). So I have some formal background and experience for what I am about to write. BUT, this is NOT legal advice for ANYONE, do NOT rely on this as gospel. If you have an actual issue hire your own actual attorney, because I'm not him. (Sorry for the boilerplate, but it's necessary).

There seems to be some confusion about the nature of patents and copyrights going on in this thread. Patents are awarded for useful, novel inventions. They can be obtained for software, though there is a LOT of debate in legal circles and within the software industry over whether that ought to be allowed. If something is protected by patent, the patent owner has the right to prevent others from making, using, or selling it. But if the patent owner sells it, or licenses someone else to sell it, then the purchaser has a license to use it and/or sell it. Still can't make it, though...

Thanks for that well written post, that's the information I was looking for. I would be interested if there were some real world cases such as with FM synthesis.

Don't worry either, I'm not looking for legal advice, I wouldn't know where to start with building a complex synth, I'm just interested in the legal aspects of IP. I'm glad there aren't - by the sounds of things - wars going on behind the scenes with developers.

One real world situation outside of music software development is with Amazon's 1-click buying feature. Amazon filed aa lawsuit against Barnes and Noble for implimenting a similar feature. Here is a passage from the Wiki article about it:

Patent

The United States Patent and Trademark Office (USPTO) issued U.S. Patent 5,960,411 for this technique to Amazon.com in September 1999. Amazon.com in 2000 licensed 1-Click ordering to Apple Computer (now Apple Inc.) for use on its on-line store.[1] Apple subsequently added 1-Click ordering to the iTunes Store[2] and iPhoto.[3]

On May 12, 2006, the USPTO ordered a reexamination[4] of the "One-Click" patent, based on a request filed by Peter Calveley.[5] Calveley cited as prior art an earlier e-commerce patent and the Digicash electronic cash system.
Wikinews has related news:
USPTO partially confirms validity of Amazon "1-click patent"

On October 9, 2007, the USPTO issued an office action in the reexamination which confirmed the patentability of claims 6 to 10 of the patent. [6] The patent examiner, however, rejected claims 1 to 5 and 11 to 15. Amazon now has up to six months to amend the rejected claims to overcome the examiner's rejection, provide arguments to demonstrate that the examiner is in error and/or provide evidence to demonstrate the patentability of their claims. During this period, the entire patent is still considered valid under US patent law. Amazon decided to rewrite the broadest claims (1 and 11) to restrict them to a shopping basket model of commerce, in order to satisfy the concerns of the examiner.[7]

In Europe, a patent application on the 1-Click ordering was filed with the European Patent Office, but was never granted. [8]

[ckatrun411]

you messed up my post placement, now it is nevermind...

[blatanville]

Hi Blatant... I am not sure exactly the motives here, but I think now would be a good time for me to point out that somewhere in this thread I stated that Human beings were not exact replicas.

Also replicate and copy are synonyms ( however I thought this was common knowledge ) however, it just seems best to get that out of the way, and,,,, avoid the xmas rush and all...

cheers buddy

dude!
first: you can show some respect and reference my entire username (blatanville). "Blatant" is juvenile and insulting. at least in your parting shot ("cheers buddy") you got my proper first name correct. But nobody except my mother, when she's pissed at me, calls me "buddy." Everyone else just says "Bud." Thanks.

second: I was seriously trying to get the end of the splitting of hairs to see if there was something in the definitions of the two words "duplicate" and "replicate" that could get y'all out of your quagmire.
apparently posting in good faith is a dumb idea around here. my bad.

And one thing you can be sure of: there's no such thing as "common knowledge."

[dbender]

As an attorney of 25 years specializing in entertainment and media-related IP (especially trademark and copyright), whose job it is to be right when representing clients, it's been interesting reading this thread.

In my experience working in this area, I have found so many incorrect and plain wrong misconceptions about this field, not only by lay people but also by attorneys as well who have not specialized in this complex legal area (including myself before I specialized in this area over 15 years ago, after already having been an attorney at that time for many years).

I love musicians and creative people, such as those who post here. I'm in awe of you, you do it for a living, and I respect and admire that. I've played guitar since age 12, over 35 years, but knowing the limits of my talents and abilities, I realized that music should be my hobby, and law my profession. I specialized in this area, so my work could come closer to my play. So, that's where I'm coming from here. I'm on your side, so please think of me as, sort of, "one of us."

I've seen many so many of my clients get themselves into trouble, because, like many of the posts here, they for some reason thought they really _knew_ about this legal area, without any of the hard work and long hours of study it takes to do so. During the Super Bowl, I was loudly yelling at the TV about what plays should be called, but, I really should not have been on that field actually being one of the coaches calling the plays. When your neck is literally on the line, and being wrong can kill you, like when doing mountain climbing, you better go with a trained and experienced climbing guide, not your neighbor who has only climbed his front stairs, but thinks your guide is wrong about how to climb the mountain ("Aw, come on, you don't need such heavy gauge rope! This string will be fine, and lighter for you.").

So a friendly note of caution, to my fellow music devotees here, based on what I've seen in my experience doing this for a living since Bush 41 was in office --javascript:emoticon(':)') please, please, for you own sakes, be careful, and as good attorneys know, don't be so certain about anything, especially in a complex area like this one, unless you are really sure there's a correct and proper valid and real basis for what you're saying is true. In law, you gotta be right, and put up or shut up (I can still hear the judges' collective gavels loudly banging, cutting off counsel as the federal court judge literally yells at attorneys -- "What's the support for your argument, counsel!!" -- that's the nice way in our field federal court judges tell you to shut up, since you can't put up -- I'm sure my colleague jedilaw heard that during the Napster hearings, when David Boise was frequently cut off by her honor).

As jedilaw said in his great post, things can get weird in this area. He knows, and wisely speaks from valuable experience, which I respect (as Bob Marly (I think) said, "Experience teacheth wisdom").

Many end up sort of like the guy who thinks he can fix something very complicated himself, without first really learning and being taught and trained how to do so, only to end up making it worse and then having to go to a true, qualified expert, who has paid the dues and worked very hard to learn and know what he's doing. That's why when I'm sick and have a medical problem, I go to a doctor, not my health nut neighbor (a great guy), who is an accountant but thinks he's an expert in medicine.

Personal opinions on this subject are one thing -- that's fine, really, but they have to be based on how things actually do work. I can have the opinion that the gerbils in the new Mercedes don't run fast enough, so my opinion is that it is overpriced -- but Hans, the Stutgaart trained mechanic, would only laugh at me, as I insisted this to him. My mother literally used to say that I shouldn't watch baseball as a kid because of the violent nature of the game, and all the interceptions when the pitcher threw the ball into the endzone. So, if someone thinks that copyright law sucks because the term of copyright is 1000 years and that is too long, that's just plain wrong. Not that the opinion is per se wrong, but the _reason_ and _basis_ for the opinion. And, worse, it undermines the validity of the opinion. I, personally agree with this opinion, but not because the term is 1000 years, because it just ain't that long, of course.

The above discussion about what "copying" means, was very interesting and gave me some ideas for arguments to use in cases I'm responsible for. But, this issue has long been the subject of a huge body of legal precedent, and based on that prior consideration in the case law on this subject, the copying discussion here really missed the mark, because it suffers from the frequent fundamental flaw (I love triple alliterations!) of failing to distinguish between what's known as mere "slavish" or purely "piratical" (yes, that's the terms used) copying, or duplication, vs. a derivative work, where new original material is added based on a prior work vs. fair use. These fine distinctions can be critical, and much depends on it. It's like a trained surgeon who know which particular capillary should be cut -- they're not all the same, i.e., just veins.

Don't you guys just love it when a musician you're recording who has never run a DAW in his life ever, or who has never recorded anything starts telling and insisting to you vehemently with certitude, how, e.g., Logic works, and that you need to make sure the VU meters stay in the red zone above 0 db, and that the best sound is when the needles are pinned all the way to the right ("because," he insists, "the sound is more even"). Of course, his holding a personal opinion about how something sounds is totally cool, but not his asserting as a fact how the process really works. It's kind of like if a non-musician tells you that one of your songs must be changed, because you need to have the chorus end on a J minor chord, or that you screwed up the bridge because you used a C chord instead of B sharp, or F instead of E sharp.

There's so much of this floating around in this area, it gets lay people (and even lawyers who don't specialize in this complex area) into trouble. You hear weird things from clients who have committed copyright infringement, like "I thought you could take up to X number of bars without being sued" etc. I always wonder, "Where'd you ever get that one." When I was practicing complex business litigation before specializing in entertainment IP, I never heard even ultra ego maniac CEOs insist to me how complex securities law worked, even though they knew much more about that than lay people in entertainment know about IP law -- instead, they were smarter than that, recognized the limits of their own expertise and knowledge, and asked me, and listened, because they knew better.

So, don't be like those people who drive you crazy, who know nothing about recording and have never done it, like for example your lawyer you just played your new demo for, who says it sounds too mushy (his own valid personal opinion) and insists with certitude to you, that you screwed up and should have added much more reverb with a 10 sec. tail to "tighten things up" (simply wrong fix, and incorrect basis for the opinion).

In closing, I join in jedilaw's admonition that my post here is only my own personal opinion, regarding abstract matters in general, and is not, nor intended to be or and should not be taken as or relied on as, legal advice, that every legal matter is unique and can only be opined on by an attorney familiar with the particular facts at hand in a given situation, and should not be relied on by anyone in their own particular dealings -- for those, see a doctor (of jurisprudence), i.e., please consult a properly trained and experienced attorney. Let your Stutgaart factory trained techs fix your high end Mercedes' mystery problem, not your neighbor who thinks he knows all about it, because he once saw a Discovery Channel show about cars, and always get proper legal advice in respect to legal matters affecting your life's blood, the creative works you sweat so hard to give birth to and create, for those of us who can't do so for lack of your talent, to listen to and enjoy. You would take your kid to a licensed doctor who graduated a proper medical school, not a witch doctor or your health nut neighbor, right? I has broken my heart over the years when I see or hear what happens when people don't do this.

So, jedilaw's excellent post above got me thinking about all of this, and called many such prior experiences I've had to mind, which I thought would be germane to share here.

Oh no, gotta go, just heard a little explosion downstairs, and hope it wasn't my boiler in the basement -- I fixed it yesterday, remembering an article I once read a while back in Popular Mechanics -- can you believe the plumber wanted me to pay him a whole $50 to fix it. Hope my '59 335 I keep down there (signed by Eric C.) is ok. [New Yorker advisory alert: this is only irony to illustrate the above]

Peace.
javascript:emoticon(':)')

[blatanville]

so...humans are "derivative works," not copies?

thanks!


j/k: truly thanks to jedilaw and dbender for taking the time to rationally lay out the finer points. much appreciated.

[jedilaw]

I'm an attorney with experience in patent litigation and copyright litigation (defended Napter, for instance). So I have some formal background and experience for what I am about to write. BUT, this is NOT legal advice for ANYONE, do NOT rely on this as gospel. If you have an actual issue hire your own actual attorney, because I'm not him. (Sorry for the boilerplate, but it's necessary).

There seems to be some confusion about the nature of patents and copyrights going on in this thread. Patents are awarded for useful, novel inventions. They can be obtained for software, though there is a LOT of debate in legal circles and within the software industry over whether that ought to be allowed. If something is protected by patent, the patent owner has the right to prevent others from making, using, or selling it. But if the patent owner sells it, or licenses someone else to sell it, then the purchaser has a license to use it and/or sell it. Still can't make it, though...

Thanks for that well written post, that's the information I was looking for. I would be interested if there were some real world cases such as with FM synthesis.

Don't worry either, I'm not looking for legal advice, I wouldn't know where to start with building a complex synth, I'm just interested in the legal aspects of IP. I'm glad there aren't - by the sounds of things - wars going on behind the scenes with developers.

One real world situation outside of music software development is with Amazon's 1-click buying feature. Amazon filed aa lawsuit against Barnes and Noble for implimenting a similar feature. Here is a passage from the Wiki article about it:

Patent

The United States Patent and Trademark Office (USPTO) issued U.S. Patent 5,960,411 for this technique to Amazon.com in September 1999. Amazon.com in 2000 licensed 1-Click ordering to Apple Computer (now Apple Inc.) for use on its on-line store.[1] Apple subsequently added 1-Click ordering to the iTunes Store[2] and iPhoto.[3]

On May 12, 2006, the USPTO ordered a reexamination[4] of the "One-Click" patent, based on a request filed by Peter Calveley.[5] Calveley cited as prior art an earlier e-commerce patent and the Digicash electronic cash system.
Wikinews has related news:
USPTO partially confirms validity of Amazon "1-click patent"

On October 9, 2007, the USPTO issued an office action in the reexamination which confirmed the patentability of claims 6 to 10 of the patent. [6] The patent examiner, however, rejected claims 1 to 5 and 11 to 15. Amazon now has up to six months to amend the rejected claims to overcome the examiner's rejection, provide arguments to demonstrate that the examiner is in error and/or provide evidence to demonstrate the patentability of their claims. During this period, the entire patent is still considered valid under US patent law. Amazon decided to rewrite the broadest claims (1 and 11) to restrict them to a shopping basket model of commerce, in order to satisfy the concerns of the examiner.[7]

In Europe, a patent application on the 1-Click ordering was filed with the European Patent Office, but was never granted. [8]

Thankfully, that one-click patent suit never went anywhere. It was being worked on by my old firm in Palo Alto. I stayed away from it on purpose, because that shit was just ridiculous.

[liars&ashes]

----The only people against copyrights and patents and whatnot, seem to be the ones who want something for nothing, and/or the ones who've never created anything worth stealing to begin with. Difficult to take them very seriously in that sense, and certainly they'll never be able to afford to buy their own law that says they can steal stuff if they want, so anything they say is rather moot isn't it.

Jeff

[blatanville]

----The only people against copyrights and patents and whatnot, seem to be the ones who want something for nothing, and/or the ones who've never created anything worth stealing to begin with. Difficult to take them very seriously in that sense, and certainly they'll never be able to afford to buy their own law that says they can steal stuff if they want, so anything they say is rather moot isn't it.

Jeff

"All generalizations are bad"

tattoo that to your forehead.

I'M against copyright AS ITS CURRENTLY PRACTISED.
I AM NOT against properly crediting people for their contributions to the arts and sciences. And I am not against people receiving some reward for their creations. But current copyright/intellectual property is so anti-growth that we need to re-visit it at a fundamental level.
I support the Creative Commons model (www.creativecommons.org).
Five albums of my music are available for free on my website (see my sig) with only an "attribution" requirement for your use of my creative works. i.e. if you use my work in a derivative work, you need only credit me as a source for the material. Kinda like including your references in essays you used to write in school...

[liars&ashes]

"All generalizations are bad"

----That's about as meaningful as saying "all opinions are bad".
----I still say get over it (not just to you, to anyone all twisted over something they have nothing to do with, ie = in this case copyrights on music/audio). The only people concerned with copyrights are the ones *ahem* stealing *ahem* sampling other people's music/voices/sounds. If yer just gonna sit at home and make jerk off remixes and use Matrix dialogue samples, then go for it, cause ain't no one but yer 5 myspace buddies ever gonna hear it anyways. The ONLY people concerned about music/audio copyright laws, are the ones who were stealing other's material to make $ from to begin with and can't get away with it now (ie = rappers, djs, and the like). No one doing original music should be the LEAST bit concerned about it. Either 1) you are no one, and no one would bother to sample you ever anyways, or 2) you are someone, and yer label or manager will deal with all that while you get high and screw groupies, so relax etc.

Jeff

[zerocrossing]

Copying is part of the creative process. It is the process of creating life.


Have a nice day.

This may be semantics, but I think you may mean "emulation" not "copy." For example, I rip a CD and I make a "copy" of it on my hard drive. If no compression is used, it's a pure copy. One could argue that even audio compression would maintain it's copy status. I agree.

However, if I learned the songs and preformed them as good as I could they wouldn't be copies of the original and something about my state as a human at the moment I performed the songs would make it impossible for me to make a pure copy. Something about my nature would be superimposed on the music. One may say that there's something creative about that process. I think the law agrees with me. You can get rights to a performance that are different than the rights to a song. That's how people like Ringo can make money off of Sgt. Peppers. He owns his performance/arraignment. No one says he wrote A Day In The Life though. (Hell, Paul probably did the drums anyway) But I digress.

So anyway, I totally agree with Vurt, though the fact that he calls himself Vurt based on a book by Jeff Noon, who I assume owns that intellectual property, makes me smile. I do enjoy Vurt's music and I really love Jeff's books. Vurt, if you are Jeff Noon, my apologies. I love your books! If you're not, I love your music and I think it's OK because I would never mistake your music for a book. That's important.

Copy is the antithesis of create.

Now on using someone's presets? That's like saying you have to design your font to write a book. Silly. Buy the font and use it. Sure, you should have to pay for them if someone sells them, but I like to buy synths FOR their presets. They are part of the instrument just as my guitar has preset pickup combos. I don't have time to be a musician and a sound designer so I through money at the problem. Sure I modifiy as needed but the nature of my content isn't the "sound" it's the relationship of tones in temporal space. Should I pay Steinberger every time I play my guitar on a song? Of course not. I haven't recorded anything in a while, but I am going to start listing instruments and presets because I do feel that they're important, but they are a feature of a tool, not what the tool makes.

As for DNA? You can't even say Hasslehoff's evil twin was a copy due to his beard, the fact that he drove a semi instead of KITT and wore a black Member's Only jacket. Very different.

Mark

[vurt]

So anyway, I totally agree with Vurt, though the fact that he calls himself Vurt based on a book by Jeff Noon, who I assume owns that intellectual property, makes me smile. I do enjoy Vurt's music and I really love Jeff's books. Vurt, if you are Jeff Noon, my apologies. I love your books! If you're not, I love your music and I think it's OK because I would never mistake your music for a book. That's important.

Copy is the antithesis of create.

as much as i appreciate the agreement i havent even posted yet in this thread

as for my name, yup it is from the book of the same name by jeff noon (no im not him, but i am a big fan) i would assume he does indeed own the ideas within the book im not 100% sure he could sue me for using the word "vurt". if he asked though i would stop using it, i have my reasons whether its legal or not.
but as you rightly say, i could never be mistaken for the book, i beleive this is where the law would care, if there was some way i would be stepping on his income, or if i tried to cash in on the whole vurt thing (oooh shit!).



feeling a bit weird at the mo as ive just spent the evening in the company of the man who killed daphne(from the diner, married to des) in neighbours

[whyterabbyt]

if he asked though i would stop using it

you could just start spelling it with a y.



that would be vyrt, by the way, rather than yurt, which is a kind of tent, I believe.

[dbender]

whyterabbyt -- but what about the doctine of sonic/phonic equivilance, assumming a tm issue exits hypothetically?

[eduardo_b]

if he asked though i would stop using it

you could just start spelling it with a y.



that would be vyrt, by the way, rather than yurt, which is a kind of tent, I believe.

So our vurt is not a Central Asian nomad in need of a yurt?

[|Diablo|]

Move to a place where you can download shit and not have to worry about all this... LOL it makes life so much easier. Wish i could do that, but i ended up spending nearly 2000$ on vst plugins....