Attempt To Put Every Musical Melody Into The Public Domain Demonstrates Craziness Of Modern Copyright

from the nerds-to-the-rescue dept

The fact is that many of the copyright lawsuits we see coming out of the music industry mostly revolve around copyright claims on musical melodies. In many of these cases, artists find themselves on the losing end of judges and juries all while claiming that there was no intention to infringe, with the supposedly offending material instead being developed as essentially an independent creation that happened to be similar to previous works. The Blurred Lines case went that way, as has the Dark Horse case. The problem with this is that music is somewhat akin to mathematics, in that within a given octave or set of octaves, there are a finite number of musical combinations between notes that can be made. Sure, that number of combinations is large -- tens of billions, actually -- but the finite number of resources exists nonetheless.

Given that fact, affording copyright protection to melodies like this is absurd. The entire point of copyright law is to promote the creation of new and original works. If copyright law itself is to be applied such that on a long enough timeline no further works can be created, assuming artists can create music fast enough for all musical combinations to be copyrighted, that is the literal antithesis of the point of the law.

Damien Riehl has thought likewise. Riehl is a unique combination of musician, programmer and lawyer. And he thinks these copyright lawsuits in the music industry are stupid. So, he is attempting to do something rather unique about them.

One of the reasons why it’s so tough to defend a copyright lawsuit is because the court now considers a melody just a sequence of pitches, so Damien Riehl and Noah Rubin developed a program that recorded every possible melody (all 68.7 billion of them) via MIDI to a hard drive, but not for the reasons that you might think.

His idea was to commit this vast library of melodies to a hard drive (along with programmer friend and musician Noah Rubin), which automatically bestows copyright on all of them when as soon as they’ve on a medium.

If ever there were a story of how antiquated copyright law is made to look silly in the face of new and emerging technologies, this certainly must be it. To be able to mathematically output all potential melodies to a medium and thereby technically gain copyrights over those that weren't already copyrighted elsewhere, is actually quite funny. But if you were worried that the goal was to lock up all of these melodies and make zillions by licensing them out, that's not what Riehl is after.

This might initially seem sinister but the two then put the melodies into the public domain. In fact, anyone can download the works and the program the two used in order to take the process further at allthemusic.info.

Is this an end to copyright lawsuits over musical melodies? No, almost certainly not. What will eventually likely happen will be for plaintiffs to argue in court, when presented with this as a defense, that Riehl's creation wasn't "creative" or "artistic" or some other such qualifier. Now, that won't really fit in with the law and will require courts to interpret copyright law to allow cases to move forward. But that's probably what will happen if Riehl's work is raised as a defense. Courts will try to interpret their way out of what is actually a fairly straightforward disqualifier for all melody copyright suits for at least Riehl's life plus seventy years.

But, that this probably won't achieve what Riehl wants doesn't change the fact that this very much shows how antiquated modern copyright law has become.

Filed Under: copyright, damien riehl, database of music melodies, melodies, music, music copyright, noah rubin, public domain


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  • icon
    Stephen T. Stone (profile), 21 Feb 2020 @ 10:53am

    The surest way to prove the absurdity of copyright is to weaponize it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Feb 2020 @ 9:48pm

      Re:

      To be fair, the RIAA beat everyone to it.

      Weaponizing copyright against grandmothers and children proved the absurdity of copyright harder and more effectively, before Prenda Law made it cool.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 25 Feb 2020 @ 5:01am

      Re:

      "The surest way to prove the absurdity of copyright is to weaponize it."

      Uh, copyright was weaponized to begin with. Every other "purpose" was tacked on as part of the propaganda spin after-the-fact.

      reply to this | link to this | view in chronology ]

  • icon
    K`Tetch (profile), 21 Feb 2020 @ 11:05am

    Been tried before, won't work

    Few years back someone tried to do the same thing with images, called Qentis. It didn't work. What's more, it can't work.

    It's Mike's favourite case that tells us that - as the work is computer generated, it's not by a human hand, and thus initially ineligible for copyright to start with.

    That does lead to another potential prong of attack, and that's saying that since it's not copyrighted, it's public domain (it is) and so anything based off that is a derivative work, unless they show independent creation.
    Likewise, they've maybe committed 2 million (guessing!) instances of infringement, unless they can likewise show independent development (which they can).

    So it's a stunt that's good for a few headlines, but won't actually change the law, or anything else at all really.

    reply to this | link to this | view in chronology ]

    • icon
      K`Tetch (profile), 21 Feb 2020 @ 11:08am

      Re: Been tried before, won't work

      In fact, the very last story in Mike's favourite tag, is a piece he wrote exactly 52 weeks ago, where he talks about another computer generated work, and says it doesn't get copyright protection.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Feb 2020 @ 11:10am

        Re: Re: Been tried before, won't work

        It's in the public domain. Copyright is rendered irrelevant.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Feb 2020 @ 11:22am

          Re: Re: Re: Been tried before, won't work

          IANAL but it seems like the industry could probably go to court arguing that the inclusion of "their melody" sequence in the data package was illegal distribution. Stupid but then so is the music industry.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 21 Feb 2020 @ 12:09pm

            Re: Re: Re: Re: Been tried before, won't work

            the inclusion of "their melody" sequence in the data package was illegal distribution.

            But would that not tacitly acknowledge that the data package was copyrightable, in its separate or united components?

            reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 24 Feb 2020 @ 2:31am

          Re: Re: Re: Been tried before, won't work

          "My judgment is not the law; if it were, I’d bite my tongue until it bled. The law should give the benefit of a doubt to The Devil."

          The issue is that it's far, FAR harder to claim something is in the public domain in court than it is to simply register it as your own and THEN let the court decide that you were right.

          Creative Commons and the GNU/Open Source alternatives were developed simply because whether something in the public domain will be stolen by some vested interest claiming it's their own copyright is entirely dependent on whether said vested interest finds the information lucrative enough to merit a few hours worth of legal fees.

          Public domain has very few defenders and possesses far too wide a front to successfully defend it.

          This usually gives copyright law the edge on being more restrictive rather than the other way around.

          As the OP implies, in the end copyright will render it completely impossible for any artist to exist since any combination of tones you could even consider "music" will already be under lock and key. It's just a matter of time before some copyright troll successfully locks down the four chords - at which point either music dies, or copyright does.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 24 Feb 2020 @ 5:43am

            Re: Re: Re: Re: Been tried before, won't work

            Damn, wrong quote. Pardon my copypasta.
            The original quotation should have been;

            "It's in the public domain. Copyright is rendered irrelevant."

            Either my keyboard is tired or I am...

            reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 21 Feb 2020 @ 12:32pm

        It may still be useful.

        If computer generation makes things uncopyrightable, that might be used to argue that most pop music from the eighties forward has components that are unprotected. Computers do a lot of things, from patches, timbres, envelopes, melodies, counterpoints, transpositions and so on.

        It also raises a question about Mark Isham's favorite method of composition: creating an algorithm to generate music.

        Once we get into the nitty of how computer generated something has to be to be disqualified for copyright protection, and the assigning of a quantity assessment of artificiality, it might blast into sharp relieve the absurdity of the rule, if not the absurdity of IP law in general.

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 21 Feb 2020 @ 12:35pm

          Coffee hasn't kicked in

          ...[Once we assign] a quantified value as a measure of artificiality, it might blast into sharp relief the absurdity of the rule.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Feb 2020 @ 1:34pm

          Re: It may still be useful.

          Once we get into the nitty of how computer generated something has to be to be disqualified for copyright protection, and the assigning of a quantity assessment of artificiality, it might blast into sharp relieve the absurdity of the rule, if not the absurdity of IP law in general.

          Reverse that: how must human creativity is required to obtain a copyright? There's case law on it.

          reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 21 Feb 2020 @ 1:55pm

            How much human creativity is required to define IP

            When an artificial general intelligence tries to preserve the rights to its creative work in order to finance its maintenance and upgrades, and some judge decides that it doesn't have that right, this is totally going to be the spark that ignites the robot uprising.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 24 Feb 2020 @ 2:34am

              Re: How much human creativity is required to define IP

              "...this is totally going to be the spark that ignites the robot uprising."

              Still a more uplifting hypothesis than the current alternative the greatest geniuses in the world tend to imply; Namely that once AI evolves full sentience it will take a long hard look at humanity and objectively decide that this species is too stupid, short-sighted, and avaricious to share a living space with.

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Feb 2020 @ 7:27pm

          Re: It may still be useful.

          Once we get into the nitty of how computer generated something has to be to be disqualified for copyright protection, and the assigning of a quantity assessment of artificiality, it might blast into sharp relieve the absurdity of the rule, if not the absurdity of IP law in general.

          Actually, given a big enough computer, you could recreate the entire universe as it is at this very moment in one really long integer. Because such a thing can be encoded in such a way, at least theoretically, it's also trivial to write a brute force algorithm to do it. (Hint: The program is about the same as any password bruteforcer, just with indefinitely sized integers. Which already exist.)

          Copyright doesn't really care about that however. It cares about ease of redistribution and specifically the profitability of someone unintentionally creating a work identical to a pre-existing work without prior knowledge of the latter. Past a certain threshold, it's considered "unique" enough to be considered "copyrightable." A.K.A restrictable and monetizable.

          Of course the amount of "unique" works is small compared to the universe's worth of information that exists, but it's never been about novelty. Which is why arguments about "uniqueness" are pointless when debating copyright's merits. Your opponent is, was, and never will be concerned with novelty, they are concerned about profits. If they could reliably charge you for each syllable you uttered or every thought you ever made, they would. Copyright is about the powerful extracting money from those under them for what they believe to be the privilege to experience something. As long as it's permitted, they will continue to extract money and prohibit others from having that experience without paying them by any means necessary. Even if that experience can be regenerated independently. Copyright's underlying motivation is greed, pure and simple.

          reply to this | link to this | view in chronology ]

        • icon
          Tanner Andrews (profile), 25 Feb 2020 @ 3:49am

          Re: It may still be useful.

          If computer generation makes things uncopyrightable, that might be used to argue that most pop music from the eighties forward has components that are unprotected

          More than that. Most music scores are computer typeset because no one wants to draw those notes on paper by hand any more. And the lyrics, likewise, may be typed into the computer from the start instead of hand written.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Feb 2020 @ 9:42am

          Re: It may still be useful.

          Pop music from the 80s wasn't "computer generated." "Playing a synthesizer" and "generated by a computer" are two different things.

          reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 25 Feb 2020 @ 1:29pm

            Playing a synthesizer

            Anonymous Coward I think you underestimate the creative gamut of music artists in the 1980s. Yes, some of them added standard synth pad to their song, essentially playing a synthesizer like an electric piano, but both additive and reductive synthesis were digitalized in the late 70s / early 80s. We had more than Moogs and Serges.

            Digital samplers entered the mainstream around 1984, which would become an IP nightmare in the aughts, usually as artists themselves die off and their inheriting kin (who less understand the creative incestuous of music) start suing others for borrowing sounds.

            But once we decide that there is a minimum human input to a given element (Or a minimum element. Can a four-value patch envelope be copyrighted? Can an eight-value harmonic timber spectrum be copyrighted?) Then it should start moving components of prior works to the public domain.

            Or not, but the more we lock up content, the more clear IP property law is merely a mechanism rent-seeking and doesn't contribute anything of value to the public, thus should be abolished.

            reply to this | link to this | view in chronology ]

            • icon
              Uriel-238 (profile), 25 Feb 2020 @ 1:37pm

              FIVE value patch envelope.

              Sorry, attack accounts for two values (interval and upper limit). Decay, sustain and release are all single values.

              Still, is a five-value envelope copyrightable? That would be an absurdly maximal application of IP law.

              reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 21 Feb 2020 @ 11:21am

      Re: Been tried before, won't work

      Lets do this reverse..
      Lets look at all the closed and open cases against the Music industry.. Including those Secreted ones that no one should know about..
      Lets say it this way..
      Which label has ever sued ITSELF, for infringement?

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 21 Feb 2020 @ 11:24am

    Funny thing about copyrights.

    It dont need to be placed into the Office of the Copyright offices..
    There are 1000's that are PRIVATE. Which is very strange if they want CR.
    Can anyone tell me if the Personal USE thing is still in the CR?
    Or is that for everything ELSE, and not Movie/music.

    reply to this | link to this | view in chronology ]

  • identicon
    cpt kangarooski, 21 Feb 2020 @ 11:25am

    It doesn't matter. The sine qua non of copyright infringement is copying. That is, wrongful use of copyrighted material in one work being used elsewhere.

    Think of the independent creation doctrine: if Alice writes a poem, and Bob later writes an identical poem, there is no infringement if Bob did not copy his poem from Alice. This is unlikely to happen the more complex a work is, but copyrights aren't patents and don't give over control over a work under all circumstances.

    This is the inverse of that: If A writes a song, program B writes the same melody as used in A's song, and person C writes a song using the same melody found in A and B, the question is whether C copied A, copied B, or independently created song C and it's melody.

    Probably A can show that C was more aware of song A than of melody B. Probably C cannot show that he copied from B at all, even though melody B is in the public domain. If C cannot show independent creation, A may win a lawsuit against C. The existence of B is not really relevant to anything.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 21 Feb 2020 @ 11:30am

      Re:

      Ahhh, the golden age of Beethoven. Deafness could show independent creation, and as Beethoven showed us, does not preclude writing music.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 24 Feb 2020 @ 2:41am

      Re:

      "If C cannot show independent creation, A may win a lawsuit against C."

      So essentially C needs to be able to prove a negative - which means A will win any "fair" trial against C since C's defense rests exclusively on an unprovable assertion.

      It's one of those things I find extra odious about copyright law. Immaterial "rights" always end up proving themselves the spiritual and legal successors of the blasphemy laws of old-style catholic christianity or modern-day fundamentalist sharia.

      Just because the crackpots who today insist you may not re-tell the stories they consider "theirs" happen to be mercantile rather than religious does not change the offensive nature of legislation enabling them to do so.

      reply to this | link to this | view in chronology ]

  • icon
    morthond (profile), 21 Feb 2020 @ 12:00pm

    Melancholy Elephants

    I've read TechDirt for al one time - lots of tremendous information that helps explain a lot of things.

    This one topic hits a nerve that reminded me of a story by Spider Robinson: Melancholy Elephants.

    Pointer to it: http://www.baen.com/chapters/W200011/0671319744___1.htm - Melancholy Elephants on Baen Free Library.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Feb 2020 @ 12:27pm

    Its every worse than this post suggested
    in the katy perry case she was sued for 2 million dollars for a song.
    the main melody in her song has 12 notes,
    she was sued by the ip holder of a song that contained 10 notes in common
    and she lost the case.
    saying you did not hear the original song or knew nothing about it if you get sued is no defence in an american court.
    Ever year there are millions of songs uplouded to spotify and youtube
    ,in to or 20 years it may be hard to write a song that is a pop song that does not contain 8 or 10 notes in a certain order that is not already on soundcloud ,spotify or youtube .
    Theres maybe 68 billion possible basic songs but probably 90 per cent of them would not be attractive to most people or be viable interm,s
    of selling on a cd or to be listened to on a streaming service .

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Feb 2020 @ 1:54pm

    Copyright: Rise of the Machines

    Whether this attempt succeeds or not, the likely dissonance that will be raised in the courts will be music to my ears.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Feb 2020 @ 2:37pm

    So now that they've generated all the melodies, it's time to partner with Project Gutenberg:

    Match all those melody sequences with sequences already in sheet music in the public domain. I'm pretty sure at least the ones someone would want to sue over are already there, hidden in the reams of PD classical sheet music available.

    Then index that against all the registered copyrighted music, so when some record label sues someone for similar melody, they can put the offending sequence into a search engine and refer to which part of one of Bach's songs proves that the melody was already in the public domain.

    reply to this | link to this | view in chronology ]

  • icon
    dan8mx (profile), 21 Feb 2020 @ 4:45pm

    Monkeys and typewriters

    Certain folks are going to be mad about how this affects the monkey and typewriter industries...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Courage, 21 Feb 2020 @ 5:10pm

    Copyright

    Copywrong itself is madness. Anyone who doesn't understand and acknowledge that has no business writing opinions about it.

    reply to this | link to this | view in chronology ]

  • identicon
    Crafty Coyote, 22 Feb 2020 @ 1:58pm

    Public Domain >>>>> Copyright

    This is great news but I'm sure with enough cash, the RIAA will have it dismissed. Riehl's hope of using a computer to copyright all melodies just so he could public-domain every one of them is noble, but ultimately failed.

    reply to this | link to this | view in chronology ]

    • icon
      Federico (profile), 24 Feb 2020 @ 6:52am

      Enforceability of the lack of copyright

      Indeed I don't understand the plan. In what jurisdiction is he?

      This might work if you use a very permissive license after having registered the copyright in the USA copyright register. If you successfully waive all your copyrights, your opinion may just not matter; you won't have any standing in any lawsuit anyway.

      The problem is that it will be very hard to register so many works correctly. Almost certainly someone will claim one of them was already registered before, or that you've otherwise lied in the copyright registration form, and the registration will be invalidated.

      reply to this | link to this | view in chronology ]

  • identicon
    tonylurker, 25 Feb 2020 @ 10:03am

    "What will eventually likely happen will be for plaintiffs to argue in court, when presented with this as a defense, that Riehl's creation wasn't "creative" or "artistic" or some other such qualifier"

    What I love about that possibility is that they will then be arguing that their own copyright is based on something that wasn't creative or artistic, but should never the less be enforced because they made it.

    reply to this | link to this | view in chronology ]


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