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Small and purty. I still have a small temptation to go completely retro but I now think I'm being lured to the shiny side of the force.

You went out and stole something that was NOT RIGHTFULLY YOURS, and when you get called on the carpet for it, YOU are the one who's being infringed upon?

What if you wrote a song and recorded it, but then as soon as your song hit airwaves, you realized what you had unconsciously copied when writing the song? A Beatle lost $1.6 million over exactly that case.

Then who pays the songwriters?

If the artists (claim to) write their own songs, who checks the songs to make sure that the artists did not accidentally infringe a copyright like George Harrison did on his solo debut album?

Obviously, you've never heard of the George Harrison copyright infringement suit. He independently created the song "My Sweet Lord", but the authors of the song "He's So Fine" sued and prevailed, saying Harrison copied the song.

But copyrights don't prevent others from creating what they would have created independently.

Tell that to (the estate of) George Harrison. He wrote "My Sweet Lord", not knowing that it was a copy of "He's So Fine". Harrison lost Bright Tunes Music v. Harrisongs Music to the tune of nearly $1.6 million.

The standard for copying under American copyright law is access (the defendant had access to the plaintiff's work even once) plus similarity (the defendant's work is substantially similar to the plaintiff's work). In musical works, substantial similarity can be arrived at by coincidence (about one in 47,000, but compare this to the number of existing musical works), and according to Bright Tunes, a plaintiff can apparently get the court to assume access if the song has been played on commercial radio.

So what steps can a songwriter take when writing a song to avoid accidentally copying a published song?

My question wasn't meant to be whether users would be criminally liable, but whether the product they were using would be considered illegal and subject to any kind of claim by the copyright owner. In property law, one who purchases a stolen item isn't entitled to keep it once it is found to be hot, even if they bought it unaware.

Hmmm... say you own a legally purchased copy of the song 'My Sweet Lord' by George Harrison. This lawsuit comes up. Are you now required to return your copy of 'My Sweet Lord' because it is now considered 'stolen property'?

The answer is 'no, of course not.' Because copyright violation and theft, despite what the BSA wants you to think, are not the treated the same under the law. Copyright violation is not theft per se because it is a 'theft' of an expression of an idea, not the theft of physical property -- basically it's plagiarism. The plagiarizer is the liable party in this case. Copyright violation is also (generally) a civil matter, rather than a criminal matter. It's (literally) an infringement upon somone else's exclusive right to copy. Basically the party that causes damages to the copyright holder is the liable party.

I hope this makes sense to you because I feel like I'm babbling. ;)

The wind tunnels could be seen as a possible point of compromise by Viking invaders. Whaddya gonna do?

How in the heck could this "prove interesting?" If the domain was registered in 1994 and the trademark was not filed for until 1996. Not to mention that this has not affected the case up to now, the thief ran away to Mexico, and the Supreme Court is likely to refuse to consider it - I fail to see the interesting part.

What it does remind me of is the "Famous Monsters of Filmland" ugliness. Forrest Ackerman won the court case hands down, but Roy Ferry continues to flaunt the law. Do not buy the magazine, unless the rightful owner gets his baby back. Here is a link to Ackerman's site:
http://4forry.best.vwh.net/

There is a short description of the case on the site. This is even more tragic thant the Sex.com case, because there is no sex.com - it is all about a man who loves science fiction and monsters and another man who is a huge bastard.

Reminds me of this site [slashdot.org].

Which, thanks to your post, is now slashdotted.

This would forbid me from burning my own music to CD, meaning the music that I myself composed.

Do you claim to have composed a song? Have you ever listened to the radio? If so, then you are presumed to have copied the song from another song in violation of federal copyright law (Bright Tunes v. Harrisongs; analysis; more analysis).

It would be cool to see /. endorse a little friendly competition among readers to knock one of these together for the lowest cost, meeting minimum specifications, i.e. keeps food chilled or frozen, able to be called with minimal fuss. Cooks food.

Thoughts?

>I shop at Fry's. I have purchased stuff online before and been ripped off, but usually when I'm purchasing a chip I want to be able to return it if it doesn't work. I have never been given the wrong chip on accident from Fry's.

First off, the people working at Fry's are too stupid to figure out how to overclock a system. If they did, it was by complete idiot mistake, not on purpose, either that or they were lucky and got a Chinese FOB who could read the manual in its untranslated form.

Second, if you're buying the raw chip, you can look at it and see the speed printed on it. Good luck returning it if they sent you the wrong part though...

Lastly, if you're buying a computer and are a "moron" (don't take that personally -- I'm not calling you or the parent to your post a moron) you don't look inside your computer ever and so even if the processor is marked at the slower speed the only thing you ever see is the BIOS screen saying the processor's overclocked speed.

>An ignorant consumer is no one's fault.

Hmmmm. Let's say I'm selling gas. I add 20% crap to the gas at a cost of virtually nothing to me and you buy my gas at full price without being told it's full of crap. Luckily the crap doesn't destroy your car, but after a year or two your mechanic asks you why theres a big pool of crap in your gas tank that's been slowly destroying your engine, and now it needs replacing.

Should you take it up the ass because you were ignorant that the gas company sold you crap gas that destroyed your engine? Or is it their fault for not selling you what they said they'd sell you (gasoline safe for you to fill your car with)?

BTW: This has actually happened, more than just a few times...

Actually, it seems we are very much in agreement.

A sale isn't a sale if the person buying the item for sale AGREES TO A CONTRACT!!!! [ ... ] If I make you sign a contract that says you must not do X, and that you are liable for civil penalties (or even criminal if the contract provisions are worded properly) if you do X, and you agree to it, you ARE subject to this penalties if you violate it. [ ... ]

I agree. Signed contracts are an important component of modern society, and should be observed and enforced. This is why I try to carefully read everything I sign (I nearly lost out on a job interview because there were onerous terms in the company's NDA I wouldn't agree to).

The stupid clicking "I agree" and onscreen agreements in tiny text is not a very enforcable contract.

Here we also mostly agree, although I would go rather farther and state that EULAs are wholly invalid, precisely because of the dodgy legal mechanisms used to try and impose them. See my lengthy editorial for a more complete discussion of my thoughts here.

I sugest making buyers of Palladium equipped hardware sign a paper contract, with a carbon copy of the contract and their signature kept by the buyer. Just like buying anything else with strings attached, like a house or car. If you read the fine print when you bought that house or car, you DID agree to restrictions on your use of it.

I think this is a splendid way to address the issue, and would support this implementation in the marketplace.

I am positive you don't have the rights to do anything you want with your horse or buggy, either. I bet you can't "mod" the wheels so that it is unsafe, nor use certain whips, nor abuse your horse.

I hope you will agree there is a distinction between restrictions coming from the government (imposed and enforced by law) and restrictions coming from the vendor (imposed by words in the manual and enforced by wishful thinking). Absent a legitimate contract -- and I do not accept EULAs as legitimate -- the vendor really has no realistic standing from which to impose restrictions on the buyer.

Prior to the DMCA -- which many people are working to have struck down -- vendors had no recourse against people who cracked through cryptosystems or removed copy protection schemes. Despite this, the computer and software industries grew from nothing to become one of the pre-eminent economic activity centers of the western world. So I hope you'll understand if I view the stated "need" for these restrictions with a lot of skepticism.

Schwab

Apparently nowhere.com belongs to an artist by the name of Nick Phillip. It seems that he has hooked it up to a bank of fax machines to print out the mail bounces that get sent to it due to spammers using that domain name for their return email addrees.

Perhaps someone should contact him and suggest that he sue the BSA for attempted identity theft?

Stephen

1 album @ $7.00 x 500000 downloads = $3,500,000

1 lawsuit from a songwriter whose publisher convinces a judge that your band stole his song = -$500,000. Even musicians aren't allowed to pirate, even if they don't know they're pirating.

Well they could post all the numerous guides they missed. I had a bunch on my website, which I'll cut and paste here for Geek Dating Guide pleasure: Why Geeks Make the Best Boyfriends

"I just Want To Be Friends"

There is also the Geek Dating Flowchart

Why Girls Actually Want Geeks
Why it usually doesn't happen
and the pitfalls of dating a nerd

15+ reasons why geek guys are "not so bad at all".

How To Lose A Geek in 10 Seconds.

And cause Slashdot loves Futurama, quotes here for your reading pleasure (both said by Fry):
"What? Valentine's Day is coming up?!?! Crap! I forgot to get a girlfriend again"
"Well she was in love with the part of me that's a slob. I was in love with her with the part of me that's desperate."

And finally, have a date for Valentine's but don't know what to do? Never fear, let old 50's educational movies guide you. From what do to on a date, Do's and Don't of Dating and Beginning Dating to Going Steady and How do you Know It's Love, cheesy acting and horrible plots can show you the way.

You claim that those who can't find alternatives to lousy major-label music are "part of the problem." Well, how do you expect anybody to solve it? If you expect people to write and perform their own music, how do you expect amateur songwriters to make sure that they don't make the same mistake George Harrison made?

I em pruood und preefileged tu hefe-a beee a pert ooff thees. I gut un imeeel frum Hekun joost a foo deys egu, eskeeng iff zeey cuoold use-a my JefeScreept incheffereezer (purted frum sumeune-a ilse-a's Jefa ferseeun) oon "oone-a ooff zeeur peges". I hed nu idea vhet zeey intended tu du veet it, boot neferzeeless seeed soore-a! Nu prublem.

I'm rulleeng oon zee fluur loogheeng my ess ooffff noo! Heha! Yuoo're-a my herues!

I am proud and privileged to have been a part of this. I got an email from Hakon just a few days ago, asking if they could use my JavaScript encheferizer (ported from someone else's Java version) on "one of their pages". I had no idea what they intended to do with it, but nevertheless said sure! No problem.

I'm rolling on the floor laughing my ass off now! Haha! You're my heroes!

What needs to be done is the Software makers and the Retailers need to sit down and make an effort to make the EULA available BEFORE the sale is made.

...Or, the software vendors could drop the entire license "agreement" charade entirely, and try living in the real world for a change.

Software vendors have been trying to have it both ways for decades. They're trying to enjoy the volume of sales provided by the "low friction" of traditional retail channels, while at the same time reserving privileges for themselves that are only available in one-on-one contract negotiations.

This is absolute bullshit, and I've said so for years. A sale is a sale is a sale. If you allow "licenses" to be applied to a transaction ex post facto, then Caveat Emptor gets raised to ridiculous heights.

I should not have to bring a Ferengi contract lawyer with me every time I go shopping at Fry's If "agreements" of this kind were to disappear tomorrow, software revenues would not decline, and the Republic would not collapse. There is no legitimate reason for them to exist at all.

Schwab

I nipped off to Fry's last week to purchase a 128MB CF card for my camera, Fry's requires the customer to sign (whether you read or not) a form of acknoweldgement that you understand memory, disk drives, etc. have special return conditions. i.e. you open it you keep it, unless it can be demonstrated that it has a manufacturing defect.

Sure, these busnesses would need a waiting room, with a pot of coffee, for people to reveiw EULA's before buying software.

As for me, I as fsck 'em, I'll do what I want with the software, modify at my own risk, and such. There are unreasonable terms in some EULA's, which wouldn't hold up in any court, but I generally ignore the whole thing. I'm not a pirate, nor am I out to screw up a product and make a bad name for a company. If Microsoft or the BSA feels they have to come into my home and check my computer and make sure I'm doing everything 'right' they can guess again.

Use FLAC [xiph.org] and make Perfect CD Quality copies of your CDs and make them available.

"Your CDs"? That only works if you're in a band. Even if the original poster is in a band whose members write their own songs, how many albums has that band released? Divide that by about 4 to see how many GBs that would make up.

And if the original poster is in a band whose members write their own songs, how can they be sure that in writing the songs, they didn't accidentally infringe another songwriter's copyright?

If you do it yourself, it's yours.

Oh really? What if some music publisher with $100 billion of equity sues you on grounds that you "accidentally copied" a song written by one of the publisher's songwriters? George Harrison lost such a lawsuit. How, before publishing a song, can a performer-songwriter make sure that the song is original?

We know, shut up! Everyone walks around with their ipods and equivalent. You can't fit shit on a 650M CD-R, duh! 10 gigs? That's a start. Don't let those numb-nuts at the RIAA know, or they will want to tax hard drives.

Oh no, too late they already want a moderate ... rate ...of ... $2.50 per gigabyte. I suppose they just want to tax everything because they can.

I've never "pirated" a piece of comercial music ever. I have made personal copies and I have shared music with friends, but I've never published someone else's work and I'm not part of any music sharing network. I don't have a problem with other people's music sharing networks, and I refuse to pay becuse some shit head in Holywood thinks they are not making enough money.

Artists, we can place our works under the public domain, FDL or a creative commons license

That won't help artists in the face of precedents such as Bright Tunes v. Harrisongs (learn about it here or here), which make even "original" works potentially infringing. "So what if you published your work under a free public license? We claim that your work is a derivative of our work, and we have 10,000 times more money than you have to defend our claim in court."

Microsoft is free to publish their entire source in the New York Times if they wanted. Doesn't change anything.

Except Microsoft would lose all trade secret protection (not copyright, trade secret) on such code. But still, the danger of "poisoning the world" with access to a copyrighted work is all too familiar to songwriters.

Once one of the free music bands out there makes a serious hit song I can guarantee they'll get themselves a nice RIAA approved

...lawsuit for "copying" the melody of an existing song. It happened to George Harrison in a song from his first album after the Beatles broke up.

I wonder if he's heard of AmpCast

OK, so how do I satisfy section 8 of the TOS, which requires artists to guarantee that all musical works embodied in submitted recordings must be original? It's a pretty standard requirement in the mp3.com clones' artist agreements, but how can I prevent what happened to George Harrison from happening to me as well?

Copyright only protects the expression of an idea, not the idea itself.

Where does one become the other?

If you want to write original pieces for the cello you are more than welcome to.

When writing an original musical work, how do I make sure that I don't unconsciously copy an existing work? And what happens when humanity runs into the theoretical limit of the number of distinct original works?

It'd be very hard to prove that information came from the paid documentation

If you had access to the paid documentation before you used the information, that would count as prima facie evidence that the information came from the paid documentation. It worked for Bright Tunes Music.

The record companies have the rights to the sheet music I would guess

That's true if the record company and the music publisher are owned by the same conglomerate, such as Warner Bros. Records and Warner Chappell Music (owner of "happy birthday to you") both owned by Warner Communications, a unit of AOL Time Warner Inc.

but they must not have any ownership if I listen to the radio and transcribe it myself.

No matter how you hear a copyrighted musical work, it's still copyrighted. Unlike with computer program copyright, there's no way to "clean-room reverse engineer" around music copyright. Even if you only unconsciously plagiarize a copyrighted musical work, you're still liable under USA copyright law.

where they can compose their own tunes

What do the National Music Publishers Association/Harry Fox Agency and its foreign equivalents have to say about the unauthorized "composing" and subsequent public performance of popular copyrighted tunes on a cellphone? Few phone subscribers have the musical ability to compose completely original ring tones, and fewer still have the ability to warrant that such ring tones are actually original and not unconsciously plagiarized.

They are also stifling legal uses such as freely distributable bootlegs, indy music from bands that want everyone to download a copy etc.

Then how does an independent band pay the songwriter, who gets eight cents per track by US law? If members of the band write the songs that the band plays, how do they verify that they didn't unconsciously plagiarize another song?

I now want to spark up my interest in music again as I want to broaden my horizons, and I figure the best way to do it is with my PC.

If you reproduce a copyrighted musical work on your computer without authorization, you commit the crime of copyright infringement.

If, when writing a song, you unconsciously copy from an existing copyrighted musical work, you commit copyright infringement.

If, when writing a song, you create a melody similar to that of an existing copyrighted musical work, even by coincidence, a music publisher with billions of dollars in the bank may take legal action against you. If you have no money with which to hire legal counsel to defend you against an allegation of copyright infringement, you're in deep doo-doo.

I'd suggest staying the heck away from music unless you plan only to cover classical pieces first published before January 1, 1923.

Independent artists and labels are free to license their music however they want.

Even if the performer is not with a major label, the songwriter still gets a fixed amount per copy distributed. Performers who write their own music have no easy way to verify that they didn't accidentally infringe the copyright of an existing work, which George Harrison found out the hard way.

commit it to memory and learn to play all the instruments and record your own identical version of the song.

Then you violate the songwriter's copyright, even if you didn't consciously copy the song.

Not if they release it royalty-free

Most professional songwriters are not willing to do this. For one thing, it costs money to run each song by lawyers to make sure that the songwriter didn't accidentally copy something else.

So for a $15 CD, where's the other $7 going?

• To the songwriter, at a federally mandated US$0.08 per track.
• To the lawyers who verified that the songwriter didn't unconsciously rip off somebody else's song.
• To the producer and recording studio, for the licensed audio engineers who mixed and mastered the album and the makers of the production equipment that they used to produce the album.
• To the artists who did the CD's manual.
• To the music video studio (if they didn't use somebody cheap like Cicierega or the guys who did "White America" for Eminem).

For more information, ask Courtney Love, who did the math.

Movies cost on average only 10-30% more than their soundtracks

A movie soundtrack containing popular music (that is, not the movie's score or some other music composed specifically for the movie) typically contains music from several artists on several labels, and it costs big $$$ to negotiate with those labels for those tracks.

and then maybe fifteen or twenty cents (per track) for the artist.

In the United States, the songwriter gets eight cents per track as well.

If a recording artist wants to learn to write his own songs, how can he make sure that he did not unconsciously copy an existing copyrighted song?

i am more interested in making music.

Who writes your songs? If you write your own songs, how do you keep yourself from unconsciously copying somebody else's musical work?

music written by the band or singer themselves

How can the performer-songwriters make sure that they didn't unconsciously copy a previous song? George Harrison got in trouble for that. It can even happen by coincidence, leading to a hypothetical situation in which the Copyright Office rejects works as "unoriginal".

No CARP royalty problems since these bands are unsigned and own the music themselves.

Really?

I know how to play a few instruments, I know some music theory, and I want to write some music, record it, and put it on the Internet, but I've run into one slight problem: How is it possible to write original music, when it's so hard to avoid accidentally re-inventing something you've heard ten years ago and losing a lawsuit? Especially when a large music publisher can take you down with just four notes?

Unless... you're a band or artist who writes your own material?

There are only 50,000 possible four note melodies in the Western musical scale, and almost all of those melodies are probably copyrighted to somebody by now. In light of those facts, how is it feasible to create original musical works without accidentally infringing on somebody's copyrighted musical work?

Imagine for a second how it would be if you wrote a song and discovered a few months later that BMG had released a CD in which someone had recorded that song without your consent.

Even worse, imagine for a second how it would be if you wrote a song and discovered a few months later that BMG had released a CD in which someone had recorded that song, seventeen years before you even wrote the song, and now you're being sued for infringing the song's copyright. It has happened. It has happened again. And with four notes considered sufficient to establish "substantial similarity" of works, and with only 50,000 possible four-note melodies in the Western musical scale, how can anybody possibly write music that a court will consider original?

Kim Newman's short story Ubermensch has a brown-shirted Superhero (alter ego 'Curt Kessler') fighting the villains of Fritz Lang and other Expressionist movies in an alternate nazi Germany (the capital is, of course, Metropolis). He survives the war, but is imprisoned for decades like Rudolph Hess, while Rotwang (the villain of Metropolis) goes to work on a US weapons program that eventually produces a 'K-bomb'. Spoilers and notes here:

http://blaklion.best.vwh.net/ubermensch.html

(According to that link, a (secretly Jewish) German 'Batman' has also been done).

Ubermensch doesn't seem to be available online, but another of Kim Newman's short stories with an interesting take on the superhero genre is:

http://www.johnnyalucard.com/coastal.html

What I don't understand is where the law is that says you are entitled to make huge sums of money because you can write and record a good song.

It actually says you're not. The copyright owner has the exclusive right to prepare derivative works from a copyrighted work, and the courts have interpreted "derivative work" quite broadly, especially in the commercial arena, where "fair use" seldom applies. Only 50,000 melodies exist in the Western musical scale, and by now, somebody probably owns them all. It's possible to infringe copyright without even knowing it. Without the ability to build on previous works, how will it be possible to create new works?

You can play 4 notes a thousand different ways. Rhythm (alone is a huge variety)

I've already taken rhythm into account in my model.

pitch

The hook of "Hallelujah Chorus" is still the hook of "Hallelujah Chorus" no matter what key you transpose it to.

tempo, chorus, etc.

Inconsequential. The legal standard for copying is whether two melodies are "substantially similar", not whether their performances match exactly.

I guarrentee if you took a 4-note progression, you could make it into a techno song, a classical song, a vocal song, and a rock song that all sound completely different and most people wouldn't identify it as the same melody.

Oh really? Tell that to George Harrison.

He doesn't say _why_ IP "belongs to the public and is in essence leased to authors and inventors." As a content creator, I'd like some explanation there.

Facts: Copyright law considers "access" plus "substantial similarity" to constitute prima facie evidence of copying. Judges have considered access to FM radio to constitute prima facie evidence of "access" to a copyrighted work that has been played on the radio (Bright v. Harrisongs).

Hypothetical situation: All combinations of five notes are copyrighted. Now write an original song that infringes on no copyright.

Moral: Without a rich public domain upon which to build, how is it possible to create further works?

technology doesn't affect law. Technology can affect culture, which then affects prevailing laws.

Actually, the proper sequence is technology, then culture, then trenches, then laws. Technology affects culture. Culture may effect a revolution, which is often a war fought in trenches, and results in new laws.

There are *very* few crimes that don't require some intent.

Unfortunately, copyright infringement (although not in Tresco's case) is one of them. In the USA, a legal precedent exists that it's possible to unknowingly infringe a copyright on a musical work by creating an original melody that's "substantially similar" to an existing work under a subsisting copyright. Another precedent found "substantial similarity" in four notes. Even though a copyright case is most often a civil action, you still go to jail for not paying $150,000 statutory damages that you can't afford.