[linux-audio-user] Copyrights on samples

[Chris Cannam]

On Wednesday 15 Oct 2003 10:16 am, iriXx wrote:
> the sounds from a synth are normally licensed under the EULA in
> such a way that the sound presets themselves are protected

So a synth sold with no EULA can be freely copied?

It does seem that the situation must be either (1.) the only reason 
you can't copy the thing is that it comes with an EULA preventing it, 
or (2.) the sounds are copyright and there is some special provision 
(either a GPL-style waiver from the copyright holder in a supplied 
licence, or something in law, or simply an unstated convention not to 
sue) for using them in music.  Option 1 seems more credible to me, 
though there  certainly are synths (my Kurzweil for example) that 
come with no EULA.

> but the
> creation of any work from them is not. it cannot be - you are the
> one who makes 'reasonable effort' to create a work from them.

That doesn't follow, logically. You're saying that if you make 
reasonable effort in a creative work then you have copyright over it, 
but that doesn't exempt you from any charge of infringing copyright 
in doing so. 

I'm sure there is a good argument there, if I just saw how it was 
framed in legal or logical terms.

That aside, even if the activity was technically legal, I suspect in 
real life you'd probably lose to one or more of:

 * an argument based on an EULA that you implicitly agreed to when 
ripping open the box
 * an argument from commercial law such as trademark infringement or 
passing off
 * an argument based explicitly on digital copyright -- copying the 
samples or other code straight from the ROM is almost certainly 
illegal, so one could argue that resampling them is just a less 
accurate way of attempting the same thing
 * an argument that required you to demonstrate that you hadn't 
actually copied the samples straight from ROM and tweaked them a bit 
to hide your tracks
 * an appeal to previous cases related to sampling, relying on an 
intuitive understanding of the original samples as creative works, 
without really solving the problem of whether they were truly 
copyrightable or not
 * a perfectly sound case based on copyright law, in which it turns 
out that it is indeed only "an unstated convention not to sue" that 
protects people making music (!)
 * vague legal threats against you and your ISP aimed at ending 
distribution and costing you more money than you can afford.

That's all assuming Roland or whoever actually cared, of course.


Chris