Electronic Alteration of a DIGITAL Sample as a Defense
August 11, 2013 2:11 PM Subscribe
i once heard a lawyer claim you can "fight" copyright claims by altering frequency and introducing manipulation to the audio samples. following text "SOUND SAMPLING PROTECTION AND INFRINGEMENT IN TODAY'S MUSIC INDUSTRY" claims this is null.
can anyone clarify this?
And the article is from 1988. A little Googling would likely turn up more recent thinking and case law around sampling. Start with the Wikipedia article, which cites quite a few post-1988 cases.
posted by beagle at 2:46 PM on August 11, 2013
posted by beagle at 2:46 PM on August 11, 2013
Are you sure this was about a legal defense, rather than how to prevent one of the automated things from realizing there's a match between the song file and the original?
posted by Sequence at 2:47 PM on August 11, 2013
posted by Sequence at 2:47 PM on August 11, 2013
Response by poster: @sequence, valid call. in this case no.
im not trying to not get banned on youtube
about that article, i don't think its a clear case. the defendants were clearly a**holes
but if they did get to court with that defence there might be something there, sans the trying-to-sell-other-people-records-as-your-own thing.
posted by yosh at 3:39 PM on August 11, 2013
im not trying to not get banned on youtube
about that article, i don't think its a clear case. the defendants were clearly a**holes
but if they did get to court with that defence there might be something there, sans the trying-to-sell-other-people-records-as-your-own thing.
posted by yosh at 3:39 PM on August 11, 2013
i once heard a lawyer claim you can "fight" copyright claims by altering frequency and introducing manipulation to the audio samples
This is either flatly wrong or a gross oversimplification, depending on the degree and type of manipulation the speaker had in mind. It is useful to view re-use of audio samples through the usual lens of fair use and other limitations and exceptions to copyright law; it is not useful to pretend that there is some technological distinction that courts will be unable to look beyond.
posted by Inspector.Gadget at 4:00 PM on August 11, 2013
This is either flatly wrong or a gross oversimplification, depending on the degree and type of manipulation the speaker had in mind. It is useful to view re-use of audio samples through the usual lens of fair use and other limitations and exceptions to copyright law; it is not useful to pretend that there is some technological distinction that courts will be unable to look beyond.
posted by Inspector.Gadget at 4:00 PM on August 11, 2013
IANAIPL but I work with them on a regular basis.
First, this is bass-ackwards:
but if they did get to court with that defence there might be something there
You can pretty much say any damn fool thing you want to as a defense. That says nothing about the legal sensicality of said damn fool thing.
Second: judges and the court system are not computers. You can't hack them with the right magic words. Instead, they're forming judgments based on systematic and theoretically consistent, but fundamentally subjective, rules.
The subjective rule that you're asking about is whether or not a copyrighted work is "transformed" by its use in another work. And it's a complicated deal that I won't pretend to be an expert in, but something entirely or largely imperceptible to the human ear won't cut it.
To see the failure mode of trying to hack the courts, Google "sovereign citizen."
posted by PMdixon at 4:56 PM on August 11, 2013
First, this is bass-ackwards:
but if they did get to court with that defence there might be something there
You can pretty much say any damn fool thing you want to as a defense. That says nothing about the legal sensicality of said damn fool thing.
Second: judges and the court system are not computers. You can't hack them with the right magic words. Instead, they're forming judgments based on systematic and theoretically consistent, but fundamentally subjective, rules.
The subjective rule that you're asking about is whether or not a copyrighted work is "transformed" by its use in another work. And it's a complicated deal that I won't pretend to be an expert in, but something entirely or largely imperceptible to the human ear won't cut it.
To see the failure mode of trying to hack the courts, Google "sovereign citizen."
posted by PMdixon at 4:56 PM on August 11, 2013
Lots of people were amused by the unsuccessful 2009 attempt to claim that MP3's of Beatles' songs were actually original works, since they were not the original recordings but rather "psychoacoustic simulations."
posted by wnissen at 5:56 PM on August 11, 2013 [2 favorites]
posted by wnissen at 5:56 PM on August 11, 2013 [2 favorites]
Best answer: Here's a non-lawyerish explanation of copyright law in a nutshell:(1) everything creative is a "work": music, paintings, photos and so forth. The creator of a "work" owns the right to sue people who copy it. This right extends to "derivative works": things that are based on the original "work". So a photograph of a painting or a recording of a performance are "derivative works" and the copyright owner has the right to sue the person who created the derivative work.
There are a few defenses to being sued for breaching someone's copyright, other than "I didn't do it". In the USA there is an idea called "transformative use" and, as PMdixon said, it's complicated, but the idea is that you don't breach someone's copyright if your work is conceptually different in the right ways and to a sufficient extent. So a photo of the painting American Gothic is a derivative work, but a photo of a couple standing in similar poses outside a similar house would probably be a "transformative use". Or not. It depends what a court says because all these things are matters for judgment.
Anyway, just switching the frequency up would not be a "transformative use" because it's still music and it's being used the same way and for the same purposes. There is frankly not much you could do to a sample that would be "transformative".(2) This has already been tested in the courts and it's not even worth trying it: this is why licensing samples is big business.
(1) This is not intended to be definitive and is subject to exclusions. IANAL.
(2) I actually think the use of samples within other songs should be considered transformative, but the courts disagree with me.
posted by Joe in Australia at 4:19 AM on August 12, 2013
There are a few defenses to being sued for breaching someone's copyright, other than "I didn't do it". In the USA there is an idea called "transformative use" and, as PMdixon said, it's complicated, but the idea is that you don't breach someone's copyright if your work is conceptually different in the right ways and to a sufficient extent. So a photo of the painting American Gothic is a derivative work, but a photo of a couple standing in similar poses outside a similar house would probably be a "transformative use". Or not. It depends what a court says because all these things are matters for judgment.
Anyway, just switching the frequency up would not be a "transformative use" because it's still music and it's being used the same way and for the same purposes. There is frankly not much you could do to a sample that would be "transformative".(2) This has already been tested in the courts and it's not even worth trying it: this is why licensing samples is big business.
(1) This is not intended to be definitive and is subject to exclusions. IANAL.
(2) I actually think the use of samples within other songs should be considered transformative, but the courts disagree with me.
posted by Joe in Australia at 4:19 AM on August 12, 2013
Best answer: A few write-ups on this -- unfortunately (and ironically) material most directly discussing programmatic alterations tends to be behind paywalls.
I'd start here: Transformativeness and the Derivative Work Right -- R.A. Reese in Columbia's Journal of Law and Arts.
This Essay explores the nature of the relationship between the derivative work right and the fair-use inquiry into transformativeness by examining all published circuit court opinions (41 published opinions in 37 cases) between the Supreme Court’s decision in Campbell and the end of 2007 that apply the statutory fair use analysis and offer some discussion of fair use transformativeness, or the derivative work right, or both. The Essay draws two conclusions from the cases. First, the courts have not viewed the preparation of any derivative work as necessarily transformative, and therefore the preparation of a derivative work is not in itself necessarily more likely (given the favored status of transformative uses) to constitute fair use. Second, appellate courts have not viewed the preparation of a derivative work — or indeed any transformation or alteration of a work’s content — as necessary to a finding that a defendant’s use is transformative, but have instead focused on whether the purpose of the defendant’s use is transformative.
A draft paper for a Duke Law conference held in 2011: Copyright, Fair Use and Transformative Critical Appropriation (Lange & Anderson)
PublicDomain Sherpa: Is the work a derivative work? How can you tell?
Wikipedia: Legal Issues Surrounding Music Sampling
Here's a 2008 law review note that uses Danger Mouse's Grey Album to frame the issues, and explores the Bridgeport case that held even a sequence of three notes could be infringing.
Here's another write up that uses the Grey Album to frame the issues, originally in the Hastings law review (Spring 2005):
INTO THE GREY: THE UNCLEAR LAWS OF DIGITAL SAMPLING
posted by snuffleupagus at 7:57 AM on August 12, 2013 [2 favorites]
I'd start here: Transformativeness and the Derivative Work Right -- R.A. Reese in Columbia's Journal of Law and Arts.
This Essay explores the nature of the relationship between the derivative work right and the fair-use inquiry into transformativeness by examining all published circuit court opinions (41 published opinions in 37 cases) between the Supreme Court’s decision in Campbell and the end of 2007 that apply the statutory fair use analysis and offer some discussion of fair use transformativeness, or the derivative work right, or both. The Essay draws two conclusions from the cases. First, the courts have not viewed the preparation of any derivative work as necessarily transformative, and therefore the preparation of a derivative work is not in itself necessarily more likely (given the favored status of transformative uses) to constitute fair use. Second, appellate courts have not viewed the preparation of a derivative work — or indeed any transformation or alteration of a work’s content — as necessary to a finding that a defendant’s use is transformative, but have instead focused on whether the purpose of the defendant’s use is transformative.
A draft paper for a Duke Law conference held in 2011: Copyright, Fair Use and Transformative Critical Appropriation (Lange & Anderson)
PublicDomain Sherpa: Is the work a derivative work? How can you tell?
Wikipedia: Legal Issues Surrounding Music Sampling
Here's a 2008 law review note that uses Danger Mouse's Grey Album to frame the issues, and explores the Bridgeport case that held even a sequence of three notes could be infringing.
Here's another write up that uses the Grey Album to frame the issues, originally in the Hastings law review (Spring 2005):
INTO THE GREY: THE UNCLEAR LAWS OF DIGITAL SAMPLING
posted by snuffleupagus at 7:57 AM on August 12, 2013 [2 favorites]
Response by poster: thanks to all that contributed. a touchy subject i know.
posted by yosh at 11:29 AM on August 13, 2013
posted by yosh at 11:29 AM on August 13, 2013
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It's highly probable that the lawyer you mentioned knew/knows squat about copyright law.
posted by BrandonW at 2:18 PM on August 11, 2013