Simulated guitar? Gibson gets carried away, but the law wins. Photo/bento creation (CC) Sakurako Kitsa.(Yup, this is a Fender Strat, but this is my kind of simulation of a musical instrument – in cheese form!)

Gibson, the guitar company, has been on an utterly absurd campaign against music games, bringing lawsuits against the developers of both Guitar Hero and Rock Band and even against retailers. In the latest illustration of how screwed up patent law is, and just how over-litigious it has made technology in this country, the patent was based on a Gibson patent for a “System and method for generating and controlling a simulated musical concert experience.” Never mind that Gibson’s patent looks nothing like Guitar Hero, or that if interpreted that loosely, Gibson could theoretically sue any music software maker.

See my previous break-down of the patent and the twisted logic of the case:
Gibson Guitar to Guitar Hero Maker: We Own All Digital Musical Reality

And following development:
Gibson Guitar Loses Mind, Sues Entire Planet

Our friend Nilay Patel gets the scoop at Engadget that Gibson has lost its Guitar Hero case in California US District Court. Engadget also has a PDF of the decision:

Gibson loses Guitar Hero patent lawsuit, gets booed off stage

You can read juicy bits in the final ruling (PDF):

  • Gibson’s own counsel withdrew from the case after the guitar maker refused their request for information. That’s right: Gibson wasn’t cooperating with their own lawyers. (Gibson later was represented by different counsel.)
  • Gibson’s own corporate general counsel didn’t respond to requests from the court.
  • Gibson started trying to force third-party Activision system providers to provide short-notice depositions, much to the dismay of the court and ACtivision, given Gibson’s own lack of cooperation.
  • Gibson tried to use a YouTube video of a Guitar Hero hacker on the record, which the court found irrelevant (and, I think, laughable.)
  • Gibson variously tried, unsuccessfully, legal gymnastics by which it could redefine musical instruments to enforce its ultimately irrelevant patent.

It’s also fun reading lawyers try to define what a musical instrument is in the context of this case. Ultimately, the determining factor in this case appears to be whether the musical instrument itself produces some kind of audio signal, not control signal. Yep, that’s right: it sounds like Gibson lost out because the Guitar Hero controller was defined as a controller but not an instrument. The court decision, showing unusual technical savvy, notes that the “Musical Instrument Digital Interface” (which they incorrectly call “device interface”) has been used for non-musical purposes, despite its name. In a fit of extreme hubris, Gibson at one point seems to have claimed ownership of MIDI for guitar controllers, despite prior art.

I’m certainly not qualified to interpret the judgment, but we can say this: Gibson lost. And they lost on almost every single point, from apparently abusing the court process to losing just about every detail they tried to prove. The court even says the Gibson arguments “border on the frivolous.”

The extent of their loss says to me the other cases have about a snowball’s chance, which raises the question of what Gibson was trying to accomplish in the first place. You have to wonder if they hoped intimidating legal action could help them win contract terms. But it’s nice to see the law win out — and raises hopes that, in the long run, legal remedies could eventually fix frivolous abuses of the patent system.

Oh, yeah – and we can all be relieved that Gibson neither owns the idea of making things look like guitars, nor musical simulation. Phew.

  • mallyone

    Shouldn't Milton Bradley be suing? I mean guitar hero (correct me if I'm wrong) is just a giant version of the game "Simon" with some tweaks.

    I'm very disappointed, I didn't think Gibson would turn into a litigious corporation… not the people who birthed the "SG", the ultimate electric guitar on the planet! Looks like they have succumbed to corporate-itus and said dammit to the rock and roll spirit.

    If I ever manage to save up enough liquid cash, I'm going to buy my SG used, and not contribute any more funds to the Gibson lawyers.

    Good day sir Gibson, I SAID GOOD DAY!

    m1 :) .

  • glomag

    Good article Peter. Gibson proved they were idiots back in the 90s when they bought and then shut down Opcode and it's very popular Studio Vision software. I was a SV user and was amazed and angered by their stupidity. This lawsuit was similarly clueless.

  • Niall

    Add Gibson to the list of stupid, evil companies I will not be buying from. When will they ever learn…

  • http://www.combatdave.com combatdave

    But… What about the Les Paul shape controller? Surely Gibson own the patent/something on that guitar shape, and had to approve the use of it? So… eh?

  • BirdFLU

    I don't think the fact that Gibson is suing people necessarily means the law is screwed up. Anyone can sue anyone for anything; it doesn't mean you'll win, but you can still file suit. I don't understand why more judges don't dismiss frivolous suits like the Gibson one. Judges have the power to do so and used to use it, but something has changed over the last twenty years and every stupid lawsuit goes through.

  • bliss

    Gibson = total wankers

  • http://www.createdigitalmusic.com Peter Kirn

    @BirdFLU: Well, that's right, I can't really use Gibson per se as the illustration. However, you can blame the law for an overabundance of litigation and associated costs re: patent laws. In fact, if decisions were regularly as sensible as this, it'd be a disincentive for this kind of dumb suit in the first place. The assumption is also that some of these cases are getting further than they should. And there's the question of how you get the patent in the first place.

    Anyway, I'm not just beating up on Gibson because they're an easy target. I really *have* forgotten and forgiven over Studio Vision, even though I was once a loyal user. (I've moved on.) I just think this is exceedingly weird, how this has played out.

  • http://keithhandy.com Keith Handy

    Cute graphic, but it's a Strat… a right-handed Strat with left-handed hardware… made out of cheese or something… it's FREAKING ME OUT, MAN.

  • http://www.myspace.com/liliththekitten lilith

    Gibson is an evil company by all accounts, as much as I love SGs and Thunderbirds, I'd pause before buying one of them. and then buy a Fender or Ibanez instead.

    Gibson also bought and killed Oberheim, the bastards!

    If I understand it correctly, you cannot trademark an electric guitar shape, otherwise Gibson would have already stopped all those other over 9000 companies making Flying V's. But you can stop someone from copying your headstock shape, this was the basis of Gibson's suit against Ibanez in the 70's.

    Also that is obviously a Fender Stratocaster on that cake.

  • http://www.myspace.com/liliththekitten lilith

    oh its rice… and, cheese or something, what the hell is that guitar made of?

  • http://www.nickstutorials.com SoundDesignTutorials

    What a lame lawsuit to begin with. I've been following the rumblings on this one for quite a while and it's nice to see a just result.

  • http://www.createdigitalmusic.com Peter Kirn

    Yup, definitely a Fender in the image. I was looking for a clown playing a Gibson, which I thought would have been more appropriate, but that only existed in my mind. I figured a Bento Box lunch of a guitar could stand in for "virtual."

    It's apparently made of cheese and bamboo shoots by a girl for her boyfriend. And it's, well, a lot cooler than this story is, I have to admit!

  • JonYo

    I'm one of the people who got canned from Opcode back in the 90s when Gibson bought the company despite having no idea what to do with it. They did the same thing to Trace Elliot amps, and to a certain extent, Oberheim. Opcode went poof, dissolved, SVP abandoned. Support for their existing MIDI interface hardware went poof too, which doesn't even seem legal. Also, our Opcode bosses and Gibson had lots of lawsuit-y stuff immediately after the acquisition. The guy that ran Gibson, and still runs it I think, Henry something, seemed like a real megalomaniac.

  • AL:

    It's nice to know lawyers won't be affected by the economic downturn, not as long as there are companies as clearly insane as Gibson willing to fund nuisance lawsuits.

  • http://www.myspace.com/woodyaki Woody Aki

    I love Gibson guitars and I detest what Guitar Hero stands for, but I have had absolute contempt for the company for years. They have the Midas touch in reverse – everything they touch turns to s**t. Examples? Many…Tobias, Steinberger, Trace Elliot, Oberheim and Sequential Circuits happen to be the saddest. And Lord forbid if you're a Gibson dealer outside of the USA. Too many stories to tell, but several trips to NAMM and Muzikmesse later, they come across as the the most condescending bunch of Republicans on a dominion powertrip you're ever likely to meet.

    Stick to buying second-hand Gibson products, and bring these morons down a peg further than they've just been!

  • AL:

    I thought Yamaha bought Sequential Circuits?

  • Polite

    Hilarious when you consider that the original guitar hero guitars were gibson licensed SGs.

    What idiots. I wish more patient trolling would turn out like this. There seems to be quite a large amount of companies crawling out of the woodwork and suing gaming companies for vague patients these days.

  • http://www.keyofgrey.com KeyOfGrey

    I like their guitars, hate their management. If my Les Paul and SG didn't sound so fantastic, I'd be embarrassed to own them.

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