May 10, 2007  ·  Lessig

Brian Transeau, aka BT, is a well known electronic, or “trance musician,” as Wikipedia puts it. More than a year ago, his lawyer contacted me about a lawsuit that BT was defendant in. BT was alleged to have “copied” a 9 second drum track in a recording that was used in an advertisement. BT had not copied anything. Moreover, the drum beat was totally generic, and not, BT argued, subject to copyright protection at all.

We don’t usually get involved in cases involving famous artists. But after more than a year in litigation, this (totally bogus) case had become too much. We therefore took the case to defend this creator’s right to create, rather than see him forced to cave to these groundless claims by a litigation happy plaintiff (he had done this to others before). Musicians, especially using electronic technology, need to be free to create without basic sound patterns being used as tools of litigation extortion.

Yesterday, the district court finally dismissed the case. After an extensive period of discovery, and expert testimony, the Court found that plaintiff had no credible evidence that BT copied the 9 second drum beat.

BT: “[The plaintiff] attacked my integrity as an artist. It’s very satisfying to be vindicated by the Court, and reassuring to know there are organizations and lawyers out there who are willing to donate their time to help artists protect themselves and their work.”

You can read the opinion here.

Thanks to the lawyers at CIS who made this happen, and also to the fantastic lawyers at Kirkland and Ellis who were also volunteers in this case.

  • three blind mice

    fascinating. the district court seems to apply a absurdly narrow definition of copying that more applies to photocopying than the way music is created:

    “Plaintiffs argue that Transeau created Aparthenonia by ‘sampling’ i.e., physically copying and then digitally manipulating BDG.”

    FFT analysis demonstrates that the Aparthenonia was not “physically” copied and defendants argue that they did no have “physical” access to copies of BDG.

    fair enough, but it is a stretch of credibility to conclude from this that the track was not copied. the court seems to be saying (as analogy) that if we make a photocopy of a page of professor lessig’s book code we are copying – but if we hear someone reading it aloud and type it in ourselves we are not?

    facts not in dispute – that the two tracks are to the human ear “strikingly similar,” that BDG pre-dated Aparthenonia, that Aparthenonian was in commercial use seems (making it possible, if not probable, that the defendants heard it) and the fact that musicians with a musical ear can easily recreate sounds which they have heard – seem to have been given very little weight by the court.

    by focusing on “physical” copying, the court seems to demonstrate a profound lack of understanding of what “intellectual” property is all about.

    there is no question that plaintiffs are original artists, it is far less clear that the defendant can make the same claim, so this is not a victory for originality – it’s a victory for derivative hacks.

    ice-ice baby.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    I think you’ll find the more laudable aspiration is:

    Musicians, especially those using electronic technology, need to be free to create and build upon other musicians’ published works without being prevented by the 300 year old anachronism that is copyright.

  • three blind mice

    lol Crosbie Fitch. you people really don’t have a clue.

    “Musicians, especially those using electronic technology, need to be free to rip off other artists, steal their creative energy, and not be challenged to come up with their own original ideas.”

    ice ice baby, Crosbie Fitch. that’s all the future holds if you people win. an endless loop of hip-hop mediocrity. no originality, no creativity, nothing but copying, copying, and more copying.

    this is why opponents of copyright must be defeated.

    *mice resolve to redouble efforts*

    we will fight you on the waves, on the beaches, in the towns, and on the internets. we will never quit, never surrender….

  • Parker

    Three blind mice, I’m not sure I’m following your argument all the way through. Are you saying that, given the right to sample, all musicians would quit writing and recording original sounds? That idea to me, seems to presuppose two other notions: first, that musicians would rather use a pre-existing recording than create a new one, and second that consumers (except you, of course), given the choice, have no preference and would likely choose the most easily produced recordings, simply because there are more of those recordings.

    The reason I don’t follow your argument is that I don’t think either of those things are true. Addressing the second claim first, I think Ice-Ice Baby (as an example) was a popular recording for merits of its own, and it didn’t bring about a sea change in national musical preferences towards sampled work. More importantly, though, I think you’ll find that musicians (and really, many of the people involved with making music, up to the *cringe* executives, even) really enjoy the act of making original music. I just don’t see a reason to assume that allowing some musicians to sample would preclude other musicians from recording in a more traditional way.

    Maybe I’ve missed something, but given the falsehood of those claims, I just don’t get what you’re trying to say here. I mean, there’s a chance that you’re right, and as a result of BT’s court victory, musicians in droves are going to drop their instruments and leave the recording studio behind, but I think that’s unlikely–not least because I’m a musician and plan to be in my studio for most of today.

    I think this is more about the fact that for whatever reason, and I won’t even address the reasons, you don’t like hip-hop, the people who make it, and the people that listen to it. I think it’s kind of over the top to try to get your least favorite music genre outlawed, but I guess you really don’t want to flip past a hip-hop station in the car. To paraphrase Salman Rushdie, it’s really easy not to be offended by the radio–turn it off. Let me know when your favorite musicians have given up writing new songs and just start copying old ones.

  • Neri

    I agree with Parker. The underlying premise of Three Blind Mice’s “Ice, Ice Baby” argument – that artists create only because the law discourages them from copying – is belied by cognitive science, thousands of years of (pre-copyright) history, and common sense.

  • ACS

    I must agree with TBM (who seem to be getting cranky in their old age) but not for the “Ice Ice Baby” argument.

    TBM correctly points out the courts narrow view of copying. As we are all aware, the method of determining whether a copy has been made is based on two vital elements – 1. That the alleged copier had an oppurtunity to copy and 2. That the resulting work is objectively similar to the original work.

    Of the second element there is apparently no doubt (I understand those works are the same). The court then disputed the first element by putting the weight on the plaintiff to evidence access to the original work. TBM correctly points out that such an approach is folly. It denies justice to an infringed party where copying has been done covertly.

    In Australia our approach to the problem has been to say that there is a sliding scale for elements 1. Access and 2 Similarity, such that where there is explicit evidence of one of those elements then it need only be likely that the second has occured for copying to be inferred (Clarendon Homes Case). His Honour in Clarendon correctly pointed to the heart of copyright law in the British legal tradition that “a defendant is not at liberty to avail himself of the plaintiff’s labour for the purpose of producing his own works”. Isnt that what has happened here? ? >?

  • circlechange

    TBM writes: “the district court seems to apply a absurdly narrow definition of copying that more applies to photocopying than the way music is created”

    TBM hasn’t read the opinion closely. physical copying wasn’t the court’s theory of the case. it was plaintiffs’. if plaintiffs thought that bt copied (but did not digitally sample) their track, they should have alleged it. they did not.

    TBM also writes: “facts not in dispute – that the two tracks are to the human ear ‘strikingly similar’”. again, TBM seems to miss the entire point of the opinion – that not only was striking similarity disputed, but Ps experts either could not testify to it, or could do so only in conclusory fashion, and/or could do so only in a way that contradicted Ps other experts.

    any p can trot out an expert at $300/hr to make conclusory statements. if summary judgment were not available to bt under these circumstances, then in effect, it would never be available in case in which a p alleges striking similarity. as the sdny court noted, “that is not the law.”