As using sounds produced on unusual 8-bit systems and game consoles grows in popularity, some artists are appropriating the music as their own. Sometimes, as with Beck, a well-known or better-marketed artist is using lesser-known artists for purposes of novelty. That alone has riled some in the hard-core chiptune community. In some cases, though, artists are resorting to outright theft. In the most recent case, part of the problem is people misunderstanding Creative Commons licenses, even though those licenses are designed to encourage sharing.

Is Creative Commons a safe license to use, or does it encourage this kind of theft? I think CC is actually a solution, not part of the problem – and this illustrates that.

Not Just Timbaland: Fitts for Fights Syndrome

Online music piracy is well known. But ready access to music online has led to a much more serious problem: digital plagiarism.

The best known case, of course, is the infamous 2007 Timbaland Controversy, in which Timbaland apparently stole musical elements from Finnish demoscene artist Tempest in the song Do It by Nelly Furtado. (See EM411 story, Wikipedia article.) But Timbaland isn’t alone.

At least Timbaland was using a sample; some artists steal whole songs outright. The notorious Norwegian duo Fitts for Fights performed entire sets stolen from demoscene/"microscene" recordings — and kept playing the stolen tunes live.

In April of this year, Laromlab released an entire album — every last track — stolen from other recordings. After CMJ reported the story, widely discussed on chip community 8-bit collective, the "artist" was forced to admit the entire album was a "hoax." (Thanks, Peter Swimm, for the tip.)

In fact, the track record here demonstrates that, for all Timbaland’s press as the most famous figure involved, micromusical plagiarism is rampant. It’s not just geeks getting defensive; there’s something to this, fueled by the novelty and apparent obscurity of the music. (See also: an ongoing thread on Pouet.net.)

Crystal Castles and Creative Commons

The latest episode combines 8-bit musical plagiarism with an abuse of Creative Commons licenses. Crystal Castles is a Toronto-based band that’s gotten quite a lot of positive press for their use of 8-bit sounds, including a keyboard with an Atari chip. (And there’s the source of the problem: this stuff is "hot" partly because it’s novel to mainstream press.)

Unfortunately, some of Crystal Castles’ sound apparently isn’t their their own.

This November, digital vinyl as we now know it will turn 10 years old. This setup is pretty simple in theory: instead of music, put encoded timecode on a record, then decode that timecode to provide information about where the record is in relationship to the needle. The idea is basic enough that, patent or no patent, it was inevitable that various developers would pursue the technique (and the very difficult work of implementation). Simulate the effect of scratching or needle dropping on a computer, and you’ve got virtual DJing, as found in products from Serato, Stanton, Native Instruments, Ms. Pinky, and others.

And as of Friday, it seems that the ongoing saga of a dispute over digital vinyl, beginning with the 2006 "divorce" of digital DJ titans Stanton Electronics and Native Instruments, may be over. NI released a statement Friday saying they had not only settled a US civil action patent case over their use of digital vinyl in Traktor Scratch, but had agreed to license the technology from N2IT Holdings, the US patent owners for digital DJing.

Apologies for the cat photo cliche, but … this involves patent law. We’d better have something cute and furry around to get through it.

The conclusion — the two have settled, Traktor Scratch is licensed per-use from N2IT, and N2IT’s patents are valid:

Native Instruments acknowledges the validity of patents held by N2IT, and has now fully licensed their usage worldwide for its TRAKTOR SCRATCH digital DJ system and related products.

The patents held by N2IT relate to general principles of digital music playback using time-code records, which are being utilized in TRAKTOR SCRATCH as well as in other manufacturers’ digital DJ systems with time-code control.

Acknowledging the validity of N2IT’s patents is actually pretty sweeping. You can read N2IT’s primary patent on Google Patent Search. The key words here are that N2IT patented the basic idea of using a turntable with encoded timecode on it for DJing. Theoretically, that could open up other digital DJ products to patent liability — keeping in mind that NI is a special case, because it was a development partner on N2IT’s FinalScratch product and was familiar with the technology.

How We Got Here: A FinalScratch History Timeline

I’m neither a patent lawyer nor a historian of digital DJ technology, so I quickly get out of my depth with the twists and turns this plot has taken. But I can offer at least a basic timeline of what’s happened, which puts today’s digital DJing in some context — albeit a somewhat strange context.

It goes something like this:

The era of artists regularly releasing stems for remixing seems imminent. In the meantime, we see occasional examples of artists who get it. Radiohead have a new feature on their tune Nude, promoted with Apple. Purchase stems of a song (that’s by stem, so you pay US$0.99 * 5 stems + 1 full song if you want everything), and you get audio via iTunes Plus. Purchase the full set, and you can also download a GarageBand / Logic Pro-compatible project with all loop, tempo, and key information embedded, as pictured at top. (Unless I’m mistaken, that’s also the ideal way to get uncompressed audio for use in other tools.)

If you happen to prefer another tool for remixing (say, one that rhymes with Mabledon Dive and is often seen running on computers from Apple), these are just DRM-free audio files, so the choice is yours. Upload the finished results to the Web, and the band will review submissions and open them to votes. There are already a number of remixes up at the moment.

NUDE RE/MIX on iTunes

Radiohead Remix Site

Hmmm, nude remixing? Brings new meaning to “bedroom producer.” Sorry, couldn’t resist.

Radiohead does specify that you can’t use these for commercial purposes; it’s too bad they didn’t choose to apply a Creative Commons non-commercial license, which would formalize essentially what they’re saying. But this is otherwise done quite nicely, nonetheless, and I hope we see more of this.

Like remixable music? Nine Inch Nails has a whole remix site, and indie label Magnatune lets you remix all their artists’ work via a Creative Commons license (though they typically don’t offer stems). Online music outlet Dance Tracks Digital goes beyond stems with full Ableton Live-ready projects, suitable for DJs. That’s just for starters; if you have other favorite remix resources, let us know.

It seems Warner exec Jim Griffin was unprepared for the rancor of the Interwebs, because he’s backpedaling on a proposal to create a blanket fee for ISPs on music. All of that was just part of a “dynamic conversation,” says Griffin in a statement, and “It would be unfortunate if a creative and fruitful dialogue were sidetracked by a rush to judgment about what was simply my own illustrative example of one of many concepts I have in this space.”

Yes, indeed — it’d be unfortunate if a discussion of a hair-brained scheme with no plan for implementation or investment from any of the stakeholders were derailed by the fact that it was a hair-brained scheme with no plan for implementation or investment from any of the stakeholders.

See some excellent coverage and analysis from CNet News.com’s Greg Sandoval.

And as Sandoval notes, “What happens is that people hear the word “tax” and objective analysis goes out the window. People condemn and vilify. Out comes the torches and pitchforks.” That lack of objectivity is what frustrated me yesterday, even without being a specialist on the legal details

Of course, I disagree with Griffin about what happens to the “dynamic conversation” when people bring out the pitchforks. He says people lose the opportunity to “consider a variety of raw concepts without prejudice.” I say they lose the opportunity to consider just how out of touch with reality his proposal is.

I’ll never fully understand technology bloggers when it comes to music policy. Here’s an obviously stupid idea: Warner Brothers, the label, comes up with a scheme to add a surcharge to ISP bills to allow, supposedly, “legal” use of music file sharing services. Stupid, yes.

Here’s the response from Michael Arrington (Techcrunch): “It’s clearly good for the music labels, who are facing their imminent extinction.” He claims that this is the plan the “labels” (actually one label) don’t want you to know (except that they’re sitting down for long interviews with Conde Nast Portfolio).

Gizmodo’s Matt Buchanan just regurgitates and further oversimplifies Arrington’s argument, and adds a picture of a kitten at gunpoint, concluding: “And as Arrington points out, it would basically freeze innovation in the industry, meaning labels would be able to ream them that much harder. Not to mention, thanks to the fine print, we’d probably no longer own our music. But that’s the whole point.”

Apparently, “imminent extinction” means multi-billion dollar industry. (In fairness, the industry often — inexplicably — argues the same thing. I wish I were part of an “extinct” multi-billion dollar industry.) And apparently you can’t even talk about the issue of how music will be distributed and paid for without focusing on the desire of said industry to destroy your life and the fact that it’s still completely doomed.

And we’ve already seen Arringtonisms like recordings are worth nothing, and musicians should really owe websites cash for promotion (the Web 2.0 Payola plan, evidently).

But what happened to the obviously stupid idea? I agree with these sites that the plan is bad — I just think, ironically, it’s bad for even more reasons than they think. I’m not actually sure anyone read the original source — I think they were too busy being enraged, or looking for appropriate kitty pictures:

Fee for All: Jim Griffin will lead Warner Music’s fight to tame the Web’s lawless music frontier.

Forget about artists. Forget about copyright holders. Screw the musicians. This is ridiculously stupid even for the labels, partly because they’re unlikely to agree on the idea — meaning the idea is extinct on arrival. “Freeze innovation”? I guess — if the labels actually pursue this. But the blogosphere has become so rabidly anti-label, it’s fighting them instead of pointing out the planet-sized holes in the logic we’re being fed:

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.)

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?

PC games — and even Windows customization utilities — make up a much larger market than music software. But in this parallel universe there have been echoes of the challenges facing music developers since the early days of PCs. Both have highly dedicated, niche audiences. Both face rampant piracy. Neither has the support of big business sales as the likes of Adobe and Microsoft do. Many of the customers use the products in their free time, rather than as tools that generate revenue. (Sorry, but it’s true.) Both have, let’s face it, customer bases who often don’t have that much money to spend, period — particularly after a hefty hardware investment.

And both gamers and musicians have been the target of aggressive anti-piracy campaigns, campaigns that get to the heart of the debate over software DRM, and very often blame pirates for failing business models.

Stardock, a “boutique” developer with a rabid following of sci-fi strategy gamers, finally spoke out. And they had good reason: a game with absolutely no DRM made it to one of the top three spots in the country.

Piracy & PC Gaming

There are real lessons for the potential of future music software development, not only in terms of piracy, but in terms of building future businesses.

Suffice to say, we at CDM discourage pirating music. I should hasten to add, though, that we’re also generally opposed to terrorism, illegal firearms, and narcotics — just in case there’s any doubt. According to a training film produced by the National District Attorneys Association and Recording Industry Association of America, and leaked on the Interwebs (doh!), these things typically go hand in hand.

In the course of the film, the producers do stumble upon an interesting solution to the issue of sagging sales of physical CDs:

“There are some sayings in certain parts of the jurisdiction when you buy a CD, ‘would you like it with or without’,” Walters adds. “The ‘with’ is a CD enclosing a piece of crack or whatever the case may be. We, continually, in working with law enforcement, find that these locations have everything from handguns to large quantities of narcotics.”