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.

“Finally, the name Gibson will be synonymous with fake guitars.”

Gibson Sues Over Guitar Hero

Thanks, Patrick.

Gibson Guitar may require a new column here on CDM, titled something like “what the $&*((*&$ can you possibly be thinking??!”

Sure, it was strange enough when Gibson started a patent dispute with Guitar Hero game developer Activision because it claimed to own the patent for anything “simulating a musical concert experience.” (Jeez, I’m glad Gibson hasn’t been to a couple of my gigs.) Never mind that their patent involved pre-recorded concert footage and a head-mounted virtual reality apparatus and had no similarity whatsoever to Guitar Hero. Never mind that they’ve waited years into this franchise, almost a decade into their patent, and over a decade into music games to both to notice.

Now things get weirder.

Gibson is suing Harmonix, developer of Rock Band. (Unlike Guitar Hero, Rock Band appears to lack a Gibson instrument license — but the suit covers Gibson’s supposed game patents, not Gibson’s guitars.)

And they’re suing Viacom, because Viacom is Harmonix’s corporate parent.

And they’re suing Electronic Arts, the publisher.

And they’re suing GameStop. And Amazon.com. And Toys ‘R Us. And Target. And Kmart.

And they’re suing Wal-Mart. (Oh, I’m sure that will end well. I can’t imagine Wal-Mart is a big outfit with armies of lawyers or anything like that.)

Joystiq has some coverage of the situation:

Gibson sues Harmonix, Viacom, EA over Guitar Hero

Gibson lays lawsuit on GameStop, other major retailers

At this point, I’d do a little evil air guitar solo to provide a soundtrack to this whole story, except I’m fairly certain Gibson might sue me for simulating a musical performance.

Hey, Gibson — got a little tip for you. Guitar Center also sells Rock Band. Any reason you’re not suing them? Ah, okay, at least at some point some surviving sense of self interests intervenes.

It’s ironic, too, because other manufacturers see these wildly-popular music games as very good for music making. Rock Band and Guitar Hero were all over the NAMM show floor, partly because of companies picking up endorsements, but partly because musicians seem to like playing the game. It’s advertising for instruments, for music gear, for — music lessons, frankly, for any time people want to learn how to play beyond the game. And it doesn’t appear to violate any Gibson intellectual property — especially with a license for Gibson’s stuff in both games.

Cheer Up, Kids!

Okay, so Gibson is embarrassing the entire music instruments industry. On a happier note, Nintendo Wii owners get to play Rock Band June 22. (via Joystiq) And that’ll be good fun — and will unleash the hardware on the Nintendo-loving game hackers out there, meaning Synth Hero or Chiptune Hero could follow in homebrew form shortly thereafter.

Real music making — also a very fun way to pass the time. Try it with friends.

What’s not fun? Lawsuits. “Lawsuit Hero” will not be coming to an Xbox 360 / PS3 soon.

Updated: I incorrectly said Gibson sued Activision; that’s not true. Activision actually pre-emptively sued Gibson to try to invalidate their patent after Gibson threatened Activision with a patent violation and tried to get partners to “license” their supposed patent. As readers have noted, this is a bizarre case of biting the hand that feeds, given that Gibson had partnered with Activision on the game’s hardware, software, and promotion. Wired.com has a good write-up:

Gibson Sues Viacom, EA Over Rock Band (Update)

Suffice to say, this could have a chilling effect on the entire music software development community if Gibson wins. Everything from indie music games to Apple’s MainStage could be said to simulate music performance.

Are you making music without real acoustic instruments? You know, in, like, virtual reality? Then you may have stepped into a strange, alternate dimension. Let’s call it, for the sake of argument, The Gibson Zone. They control the horizontal. They control the vertical. They invented what you’re doing … right now.

Or, at least, that seems to be the message sent by a recent patent dispute between Gibson Guitar Corporation and Guitar Hero developer Activision. (Harmonix, the original Guitar Hero developer, has moved on to Rock Band.)

I know what you’re thinking: maybe Gibson claims to have invented the guitar, or the Guitar Hero controller looks a little too much like an Epiphone or something. Ah, but that might actually make some sort of logical sense, and this is the topsy-turvy world of intellectual property. In fact, both Harmonix and Activision already have licenses with Gibson for their guitars.

Instead, Gibson is arguing they own the rights to anything that can “simulate participation in a concert,” which they patented in 1999. (Look out, air guitar lovers.) Now, I don’t claim to be an expert in patent law, but being the layperson that I am, I would assume the original Gibson patent would have some passing similarity to Guitar Hero.

System and method for generating and controlling a simulated musical concert experience [Google Patents]

Well, let’s review. The Gibson patent is described as follows:

“A musician can simulate participation in a concert by playing a musical instrument…”

Okay, with you so far.

“…and wearing a head-mounted 3D display that includes stereo speakers.”

Nope. Lost. They do know that Guitar Hero is not available for Virtual Boy, right?

“the musical instrument generating an instrument audio signal at an instrument audio output, the instrument audio signal varying in response to operation of the instrument by the user of the system;”

Okay: musical instrument, check. “Instrument audio signal?” No, not in Guitar Hero.

“a video source providing a source video signal at a source video output, the source video signal representing a video portion of the pre-recorded musical performance

a video display responsive to the source video signal whereby the user can view the video portion of the pre-recorded musical performance on the video display.”

To the extent that Guitar Hero involves a TV, yes. Pre-recorded musical performance? What? I’m lost again. In fact, what exactly is Gibson describing here? Playing your guitar while watching an old Pearl Jam concert DVD? With goggles on your eyes?

“an audio source providing a source audio signal at a source audio output, the source audio signal representing an audio portion of the pre-recorded musical performance, the audio portion including an instrument sound track containing pre-recorded musical sounds that would be generated by the musical instrument in the pre-recorded musical performance”

At this point, I think Gibson is patenting sound itself. Or, at least, karaoke, which as I recall had already been invented in 1999.

a system interface device having a first audio input electrically connected to the instrument audio output, a second audio input electrically connected to the source audio output, and a first interface audio output;

More damning evidence, except for the fact that Guitar Hero doesn’t have an audio interface.

And, still more:

f. the system interface device including a source audio control circuit responsive to the instrument audio signal, whereby a characteristic of the source audio signal is controlled in response to operation of the musical instrument by the user to provide a controlled source audio signal at the first interface audio output; and
g. an audio playback transducer responsive to the controlled source audio signal such that the user can listen to the audio portion of the pre-recorded musical performance on the transducer, in synchronization with the video portion.

Back to my first theory. This, followed by lots of talk about audio signals and audio portions and “video disc machines” still seems to involve you playing your Pearl Jam DVD karaoke-style with a guitar. In other words, both wholly un-patentable, and wholly unrelated to Guitar Hero, an interactive game with computer-generated graphics and a controller with buttons not audio.

It’d be a bit like if the guy who invented the paperclip claimed patent rights for deep sea fishing. But, as I said, this is patent law — so that may be possible.

Now some visual evidence:

Keeping in mind that what you’re looking at involves audio signal, not the control input of a game controller, from that guitar, I’ve provided this marked-up version, removing the stuff not in Guitar Hero:

But Gibson does have a point. To the extent that Guitar Hero involves:

• sound
• image
• people pretending to be musicians
• something shaped like a guitar
• an on/off switch

…Guitar Hero is a dead-ringer, patent-violating copy of what they described in 1999. Then again, so is a group of stoners playing air guitar Pink Floyd to The Wizard of Oz.

‘Guitar Hero’ Subject of Patent Dispute [Associated Press, via Wired.com]

Don’t get too excited. Gibson Guitar is not, in fact, introducing a fully robotic guitar. Or a creepy robot doll that plays a guitar. Nor are they shipping you a handsome (male/female/your choice) robot assistant who will follow you around and tune your guitar for you. Too bad. But they are launching a robotic, self-tuning guitar on December 7. And most importantly, it comes in a limited-edition frost blue paint retro-robotic job, which even as a non-guitarist, I have to admit is super hot. So, what’s robotic about it? Its tuning system:

In addition to its automated tuning and alternate/open tuning functions, the Gibson Robot Guitar offers a unique Intonation function, which guides even the most tweak-phobic player through the simple steps of achieving perfect intonation on this revolutionary instrument. No tools or external tuners or other gadgets are needed other than a small screwdriver and the Robot Guitar’s own Master Control Knob (MCK). The guitar itself “talks you through” the entire process, resulting in a correctly intonated guitar in a fraction of the time it takes even a professional guitar tech to do the same job.

My favorite line was this, from the press release:

“Since the dawn of the instrument, musicians have come to accept the guitar’s imperfections and lack of tonal precision as necessary evils. Onstage and off, guitarists have fought to stay in tune. Every music lover and performer has had to suffer through the show—halting, mood-killing atonal droning of a loudly amped guitar being brought into tune.”

Or, erm, not brought into tune, as the case may be. (Jump!)

I read that initially as “every music lover … had to suffer through the show,” and the whole passage makes it sound like pretty much everybody just has to suffer guitars. Boy, am I ever a Keyboard player.

In all seriousness, the good news here is that this instrument really opens up the possibilities of open and alternative tunings, which make a terrific difference in sound even untrained ears may be aware of. And that’s not an “experimental” thing; it’s part of the history of the music. Gibson does a nice job of summarizing that on their page, and has an interview with the inventor, as well.

The connection to this site, aside from “robot” in the name — tuning is important, and it’s something I’d love to see soft synth makers make more accessible to lay people (hint: make it easier to adjust tuning in the interface, do some more interesting presets, and even think about controllers).

Robot Guitar Product Site with manual, demo videos, and background [Gibson Guitar]

No word yet on whether Van Halen will be endorsing this. Gibson: might want to send them one, just in case. (Hey, I had to get one cheap shot in.)

Bizarre but adorable, Gibson has turned their iconic 1959 Les Paul guitar into a miniaturized replica, a functioning USB 2.0 1 GB Flash Drive. It will store data. It will not make any sound. But it does have specs that you, erm, don’t normally get out of a guitar: 14Mbps read / 6MBps write, 9 year data retention, LED indicator, and USB extension cable.

Gibson Signature Series Les Paul Flash Drive

No one told me, but Gibson has introduced an entire line of consumer electronics, including HDMI cables, hard drives, speakers, surge protectors (really), and DVD recorders. Odd, but … okay. I’m sure it has something to do with distribution or other business voodoo I don’t understand. Gibson’s a really, really big company with lots of brands, so someone with more knowledge of the company might be able to explain this.

Apparently even this flash drive is just the first of a series of “Signature Series” flash drives miniaturizing classic Gibson guitars. No word on price, but you can sign up to win one free.

I’m not sure what made Gibson decide to get into the flash drive game, but I wish they’d gone with bigger storage. Now I want a (functioning) Theremin flash drive with 16 GB storage. Any takers?

Previous miniature things:

DIY Papercraft Synthesizers: Make Your Own
Tiny Instruments: Strange Pocket Soundmaker Toys from MiJam
Exquisite Miniature Synthesizers, Modular Marimba, Made from Paper
Bob Moog as action figure
Mobile Guitar Studios, complete with Fender keychains
Miniature Studios: Gear Lust Meets Toys ‘R Us