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:

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.)

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.”

Universal CEO Doug Morris makes an easy target for the blogosphere. This is the old-school record industry executive who called iPod owners thieves and wanted broad legal enforcement against piracy — enforcement that, in the end, seems to pale in comparison to the revenue generated by actually offering online sales. So, now that Morris has gone up against Wired, the blogosphere can easily see him as a dinosaur.

Universal’s CEO Once Called iPod Users Thieves. Now He’s Giving Songs Away. [Wired News]

But as artists, all of us face a fundamental problem: how do you put value on something that’s ephemeral? It’s an age-old issue that has faced musicians explaining to their parents why they don’t want a real job, and artists to their patrons when affixing a price tag. (And as we’ve seen from veteran software developers and the BanPiracy debate, software “artists” face the same challenge.) Sure, people love to talk piracy, because it’s easier to talk in those terms. Piracy is theft, theft is crime, and crime is bad — including making a mix tape for a friend. Or all music should be free, and never mind that artists need health insurance and rent money. They’re black and white extremes, entirely couched in moral/philosophical terms, neither of which contend with how to solve the actual real-world problem (at least, not if you stop there).

And then I came across this quote from Morris in the interview:

“Really, an album that someone worked on for two years — is that worth only $9, $10, when people pay two bucks for coffee in Starbucks?” Morris sighs. “People never really understand what’s happening to the artists … If you had Coca-Cola coming through the faucet in your kitchen, how much would you be willing to pay for Coca-Cola? There you go,” he says. “That’s what happened to the record business.”

Wait a minute… a liquid that comes out of your faucet for free, but is also sold, in bottles, at retail. How much would you be willing to pay? Hmmm… this sounds familiar.

It’s called water.

And how much are people willing to pay for the privilege of packaging, control over subtle variations of taste, and mobility? Quite a lot, as it happens. More than Coke.

BanPiracy.org is a independent organization pursuing “copyright enforcement” for pirated software, targeting studios with sting operations and lawsuits. Recently, I challenged them to demonstrate that they have other developers onboard aside from Waves Audio. That seems reasonable, given their website claims they have been contracted by “many of the biggest names in the industry” and that they’re the “leading rights advocate for the audio software and digital content industry.”

Ross Johnson of PR firm Strick and Company contacted me this week to say BanPiracy had responded to my challenge and, presumably, various criticisms these tactics have attracted. (Paris Hilton and Halliburton have turned to his firm, which is known for defending companies in crisis.) Ross writes:

“As a big fan of the lively discussions on your user forums relating to BanPiracy, I have encouraged my client to respond to your challenge recently posted.”

The response is titled “BanPiracy Says Thanks to the Brave Ones on Its Anniversary!” and was sent to various media outlets. Now, I’m likewise a fan of lively debate, so I want to thank Ross for encouraging BanPiracy to join the discussion.

But the answer to my challenge, evidently, is no, they can’t demonstrate that they have any other developers onboard. They even acknowledge that the fact that they’re a for-profit endeavor might “be a tough sell.” They manage to copy and paste supportive comments from a trade group and an anti-piracy manufacturer, but take those quotes out of context (including, bizarrely, a comment left here on CDM by one of our own contributors — he has a few, ahem, words for BanPiracy in comments now that they’ve distorted what he said).

Here’s the full response, penned by Tomer Elbaz and Michael T. David, COO and CEO respectively. I’ll say this: couched in epic battle terminology, it isn’t PR speak: