Behringer responds to reports, defends reverse engineering

MUSIC TRIBE and Behringer responded early today to CDM’s request for comment, following revelations that company had targeted a Chinese website and Dave Smith Instruments with threatened or real legal action over criticism of the company’s business practices.

Uli Behringer, company CEO and founder of holding company MUSIC TRIBE, shared the following, which I’ve included in its entirety. (He also shared the same message to their Facebook group.)

In the message, Behringer doubles down on the claim that comments posted by a Dave Smith Instruments employee to the Gearslutz forum, as well as by Chinese news site Midifan, are false and constitute illegal defamation. He also defends the practice of what he describes as “reverse engineering” in their product development process.

Here’s their side of the story, as represented to us:

Hi Peter,

Thank you for reaching out and giving us an opportunity to respond in detail which we appreciate.

This is actually a first in our history with CDM and we welcome the change. As usual there are always two sides to any story and in the spirit of transparency and fairness we believe both sides should be heard. Since much revolves around “Defamation,” please find a quick Wiki link.

https://en.wikipedia.org/wiki/Defamation

Chinese Media Case
Allow me to first comment on the previous story related to the Chinese Media case. While you had claimed to have reached out to us for comments, there is no such record in any of our systems. You only contacted me and Michael Lapke last weekend after the news was already a week old.

Let me start by saying that we don’t have any problem with people criticizing us. In fact we appreciate constructive criticism as that’s the only way to learn. What we have a problem with is when our employees are being called highly offensive and insulting names by media outlets. Unfortunately your article did not properly reflect the full content and background of the language used, which in the Chinese culture has a highly different sensitivity and legality.

This was not only raised by our Chinese colleagues but also customers of this media site who felt compelled to contact us. Also publishing pictures of a cancer-fighting colleague in a hospital bed has caused deep concerns among our people.

We sent the owner of the publishing site a Cease-and-Desist letter, but he was never sued as wrongly reported. We have since spoken with the publisher and they have promised to remove the offensive language and refrain from posting such slur in the future. We consider this case to be resolved and he also has standing invitation to visit us.

Since our employee welfare and integrity has been severely questioned by this Chinese magazine and whose accusations have later been repeated by CDM and other publishers without fact checking, I like to post a link to a local job portal that may give you a different impression. We also invited you Peter (and everyone else) to visit us, both in Manchester and Zhongshan.

We are very proud that we have been ranked Zhongshan’s No. 1 employer by the leading and independent job site (http://www.jobui.com/company/35895/)

Our factory MUSIC Tribe City is ranked:

· No 1 most popular electronics company
· No 1 most popular recruiting company
· No 1 most employee caring company

I am very proud of our local leaders who go out of their way to make a difference for our employees. If you like to learn more about our MUSIC Tribe City here is a video.

DSI Case

Some time ago an employee of DSI had posted incorrect and slanderous statements about our company on multiple forums. We put both the employee as well as DSI on notice and received a signed Cease-and-Desist letter from the employee where he assured us that he would refrain from such future comments. I have attached a copy of the undertaking of the employee to stop making such comments. In the reply of DSI, the company stated that it has instructed all employees to stop making any false or derogatory statements against us.

It is important to understand that this is not a legal action against a mere individual but a representative of a competitor. Any such false and disparaging comments made by DSI’s employee, are damaging and inappropriate in a highly competitive market such as ours. Unfortunately and despite the signed declaration, the individual working for DSI chose to continue to make such claims and hence we were forced to take legal action. If the employee had stopped his actions as agreed, the case would have never been field. While I am not a lawyer, I can only assume that including 20 “John Does” is part of a standard legal procedure to include other potential individuals related to the company. For clarity purposes, this case has nothing to with any particular forum or individuals other than those related to DSI.

Misconception around IP

Allow me to post an article about IP (Intellectual Property) as this is an important one to us. Especially because we have been accused of not honoring the IP of other manufacturers. I have heard and read over the years many accounts of lawsuits, judgments and sanctions against our company that are frankly based in fiction and not fact.

Technology is free for anyone to use unless it is protected

This is the fundamental principle of every industry and how we as a society progress and evolve. Imagine there was only one car or guitar manufacturer. I welcome this opportunity to set the record straight not only on past cases but to also clarify our view on IP and what constitutes fair competition as well.

About 30 years ago, as a small garage operation, we became involved in a patent dispute with Aphex over a processor we were building. At that time there were several companies who produced those exciters, such Akai, SPL, D&R, etc. Our patent attorney advised us that the Aphex patent was invalid and I also applied for my own patent (DE3904425), with sponsorship from the acclaimed Fraunhofer Institute, the inventors of MP3. Despite assurances and our own beliefs, we ended up in court where the judge ruled in Aphex’s favor and we lost the case. We paid damages and moved on.

This case illustrates very clearly what I came to understand over the ensuing nearly 30 years about patents and IP. Disputes over intellectual property are commonplace in many industries and especially so in the technology industry. IP is a grey area, as it deals with patents, trade dress, copyrights, designs etc. where not much is black and white.

Just look at cases with Roland versus InMusic, Gibson versus PRS, Peavey versus QSC, Microsoft, Blackberry, Yahoo, Google, Samsung, Apple etc. Lawsuits are often used as “guerilla tactics” and especially common in the US where legal fees are sky high and each party has to pay its own fees regardless of the outcome of the case. This, along with the fact that IP litigation is often used as a tool to push a competitor out of business, are reasons why there are so many cases in this area of law.

Misconceptions around IP

One needs to be clear about the distinction between blatantly copying someone else’s product and the principle of reverse engineering. Copying a product 1:1 is clearly illegal, however reverse engineering is something that takes place every day and is accepted as part of a product development process known as benchmarking.

Often one company will establish a new market opportunity for a unique product and others will follow with their versions of that pioneering product. Think iPhone followed by Samsung Galaxy. This is the principle of competition.

The Article from Berkeley Law School gives a great read and provides valuable background information. A quick excerpt demonstrates why public opinion often differs from the law.

“Reverse engineering has a long history as an accepted practice. Lawyers and economists have endorsed reverse engineering as an appropriate way for firms to obtain information about another firm’s product, even if the intended result is to make a directly competing product that will draw away customers from the maker of the first product.”

One of the cases that endures in people’s memories is when we were sued by Mackie over alleged infringement of their IP. After a series of very costly and bitter court cases which we all won, Mackie reached out to us for a settlement which did not involve any money. It was proven in court that we had not copied their schematics or PCB layouts, nor had we infringed on any patents as there were none. Nor had there ever been any legal cases brought by BBE, dbx or Drawmer as claimed by Mackie as part of their marketing campaign against us and which was later erroneously reported by Wikipedia and even CDM.

In our first two decades, most of our products were designed to follow market leaders with similar features and appearance, at a lower cost. This value proposition upset many of our competitors while at the same time earning us a huge fan base among customers. I fully understand that many of those competitors would be frustrated by our ability to deliver equivalent or better products at significantly lower prices and that is the source of much of the anger directed at us by them.

Since the Aphex case we have been sued several times and we equally had to sue competitors over infringement of our IP. This happens in every industry and is part of a fierce and competitive landscape.

However, to be clear, we have not lost any substantial IP case since the Aphex case 30 years ago and legal cases are a matter of public record.

We are committed to never engage in any activity that willfully infringes on the intellectual property rights of any company or individual. However, we are also aware that legal wrangling will continue as we press on with our philosophy of delivering the best products at the lowest possible cost.

We welcome criticism

I am a big believer in free speech and welcome any form of constructive criticism, as this is the only way for us to learn and improve. We also don’t mind any comments made or language used by individuals as this is a matter of personal choice.

It becomes sensitive when incorrect or defamatory statements are made by competitors and the media. While there is free speech, words do have consequences and since we are all bound by the law, the rules should be applied equally to everyone.
Once again, I understand that people have their opinions and preferences and I fully respect that. I also understand that some people don’t like me or our company, and chose not to buy our products which I respect, too.

Since we started our company 30 years ago, we have always carefully listened to our customers and built what they wanted us to build. Sometimes people would request us to improve an existing product in the market, sometimes they would come up with a complete new idea. In fact many of the ideas for our most successful products have actually come from our customers and for that we are immensely grateful.

However, we are also aware that legal wrangling will continue as we press on with our philosophy of delivering the best products at the lowest possible cost.

This is the philosophy I started the company on 30 years ago, and this is the philosophy that will carry us into the future.

Thanks for listening.

Uli

Pictured: a mock-up of Music Tribe City.

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Behringer have sued Dave Smith Instruments, forum posters for defamation

In addition to sending a cease-and-desist letter to a popular Chinese music gear site, Behringer are now taking rival manufacturer Dave Smith Instruments – and unnamed users of a popular forum – to court.

Last week, CDM reported that Behringer’s global entity, MUSIC Tribe, had sent a cease and desist letter to Chinese news site Midifan, threatening a criminal defamation lawsuit would be the next step. However, as of this writing, no lawsuit has been served.

CDM was tipped off today that court filings are available showing MUSIC GROUP (in the USA) have proceeded with legal action against Dave Smith Instruments and various defendants for libel per se, libel per quod, and product disparagement, in the state of California, seeking damages in excess of US$250,000. The filings are dated 9th of June 2018.

The twist here is that in addition to Dave Smith Instruments, the manufacturer, and employee Anthony Karavidas (an engineer at DSI), the lawsuit seeks damages from an additional twenty individuals posting in the same forum thread. Since the identity of those individuals is unknown, they’re named as “DOES 1-20.” In the words of the lawsuit, “the true names and capacities, whether individual, corporate, associate or otherwise … are unknown to Plaintiff.”

In other words, it’s possible someone reading this article just got sued in California but doesn’t know it yet. Uh… hi there, happy Tuesday.

Behringer name Dave Smith’s Prophet Rev2 as a competitor to the Behringer Deepmind 12 in the suit.

Court filings are available as public record of the San Francisco County Superior Court (that’s the state trial court of the county of San Francisco). Expect a large pile of legal findings from the two companies and their lawyers, but those are located here:

https://sfsuperiorcourt.org/

(All documents related to the proceeding are located under case CGC17559458.)

The lawsuit is directed exclusively at commentary published by DSI employees on the Gearslutz forums.

But to review: a selection of comments by a single engineer and twenty unnamed individuals has been turned into a quarter-million dollar-plus defamation claim against a manufacturer, an individual, and pseudonymous forum posters. That thread is still up – it reached the 153-page count before a Gearslutz moderator closed the discussion, on the 4th of July of 2017. One sample:

Behringer Mini model D? A good idea?

(Whereas some threads were initiated by forum user Uli Behringer himself, this one came from a third party, before it ballooned.)

Dave Smith Instruments declined to comment for this story.

What the lawsuit says

According to evidence presented in the lawsuit, Tony, appearing as Tonykara, wrote a series of messages in a thread in early 2017 on Gearslutz forums, and later identified himself as an engineer working for DSI when a user asked him who he was. In the same thread, DOES 1-20 [users identified only by handle] chime in with other sentiments tilted against Behringer. (This thread itself was not entirely one-sided – even in the court evidence provided, you’ll read other form posters criticizing Dave Smith Instruments and Tonykara.)

These observations range from general complaints about Behringer products copying other products or characterizing business practices as “underhanded,” to specific allegations – particularly, a post by Karavidas that claims the Behringer CT100 cable tester is a “blatant copy” of a product by Ebtech.

Some of these complaints may indeed be factually questionable or genuinely inaccurate. Other claims, however, would be harder to disprove. For instance, the lawsuit highlights a comment by Mike Hiegemann (aka Paul Dither) who says “it’s not a secret that Behringer has ripped off products in the past and is planning to do so in the future.” The lawsuit characterizes that as “false, defamatory, and libelous.”

It would be hard to prove or disprove what Behringer will do in the future (obviously), but note that past lawsuits by Roland and Mackie in fact claimed some past Behringer-branded products were deliberate copies. Whether or not those makers won those lawsuits, it means that they did product a significant amount of material evidence as a matter of public record.

Or to put it another way: if you go out and say CDM is a “crap site,” I really can’t do anything. Even if you say “CDM is a biased site that only does what it’s advertisers want,” ditto. I might disagree, but could I take you to court for libel? If you say “CDM is a crap site that’s just a bunch of archaic open source tools mixed with advertiser news made for aging music hipsters,” I … actually, okay I think I’m just now projecting. You get the point.

So, the next questions to answer appear to be, how truthful or untruthful were these statements? Can they be held as libelous? What damages would the authors owe MUSIC Group, if so? Is Dave Smith Instruments legally responsible for what one of its employees posted on a forum?

And I suspect most of interest to readers of this site, can Behringer unmask a series of people posting under pseudonyms and hold them responsible, as well?

There are three charges made in the lawsuit:

Libel per quod. Paraphrasing: claims about Behringer’s business practice and alleged history of copying other products are false and have hurt the company’s reputation. This category requires demonstrating specific legal damages in court.

Libel per se. This is a related set of claims, but because of US law forbidding attacking someone else’s business profession falsely, might not require damages. [Very big disclaimer: I’m not a lawyer. If I were a lawyer, I would probably advise you that you shouldn’t take this description as legal advice. But you can get this literally from what “per quod” and “per se” mean.]

Product disparagement. Here, because potential customers read these statements, and they refer to the Behringer brand and products, there’s a specific claim of damages to the brand and the products, beyond

If you can find your way through the court documents, you’ll find exhibits reproducing the complete forum thread, plus a cease and desist letter sent on the 7th of March 2017 – and an agreement by Tony Karavidas to comply with the letter.

There are a couple of things here that are unclear to me, which I will try to investigate.

One, reading through the lawsuit, I’m unclear as to the degree to which Karavidas may have violated the terms of the cease and desist. It appears that some message posts – as he attempted to continue to explain and/or complain about the situation – post-date an agreement to cease disparaging Behringer. It may be that failing to adequately respond to the cease and desist triggered the legal action, instead of defusing the issue.

Two, it’s unclear what will happen to other, pseudonymous posters to Gearslutz. The lawsuit says these “Does” 1-20 will be amended to the lawsuit once their identities are known. That may mean attempting to obligate the forum to reveal those identities. (Historical footnote: when Apple attempted to unmask sources and authors of stories on its leaked “Asteroid” audio interface over a decade ago, courts ruled it couldn’t, in a case called Apple versus Does. This is a different set of circumstances, but it gives some clue to how courts handle unidentified users in legal cases.)

Watching this case, however, may prove itself interesting. The law is intended to prevent damage to a profession – whether you’re one person or a big manufacturer – based on untrue claims. But this means two things, if the courts work correctly. On one hand, if false claims were made about Behringer, that will presumably come out. On the other hand, if Behringer are simply gagging criticism, and if industry complaints that their products are unfairly copying intellectual property, theoretically, that should come out, too.

And, of course, it’s possible for both of those scenarios to be true at once, depending on how this shakes out.

But for anyone who believed that defamation was some peculiarity of Chinese law last week, in fact US law and many international laws do hold individuals and publishers (like this one) legally responsible for damages if we make claims that are false. And yes, suffice to say, that could put a publisher out of business, on legal fees alone. That’s not a commentary on this case – that’s the reality of tort laws worldwide. And those laws exist to balance protections on free speech with the impact that speech can have as others.

Behringer had not yet responded to CDM’s request for comment as I published this.

Behringer and China

Late last week, I shared news that Chinese news portal Midifan had received a cease and desist letter from Behringer, via Music Tribe.

Behringer threatens legal action against a site that called it a copycat

Midifan emphasized that the letter complained about products “copying” existing products, and in fact the letter from Music Tribe singled out coverage of Superbooth introductions of products with appearance, names, and structures based on the Sequential [Dave Smith] Pro One, Roland VC-330, SH-101, TR-808, and vintage modules, plus the ARP Odyssey. (Note that KORG had licensed the Odyssey and collaborated with its original creators; Behringer did not.)

Midifan and Music Tribe also clashed over reports by Midifan of a worker strike at Behringer’s MUSIC Tribe City manufacturing facility in Zhongshan, China.

Behringer has declined to comment publicly on CDM’s story. I did reach out to Uli Behringer directly over the weekend, and had a conversation, but got no further public comment.

Uli Behringer did post a statement to the MUSIC Tribe Academy Facebook group, which CDM shared via our own channels.

https://www.facebook.com/musicmotionnoise/posts/10156301703909870

This post disputes claims of worker health issues at their own MUSIC Tribe City manufacturing facility, opened this year. And it invites us to go visit the actual facility.

It doesn’t respond to other questions about the cease and desist letter.

If Behringer add more, I’ll run it here.

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Behringer threatens legal action against a site that called it a copycat

Midifan, a top music portal and online magazine in China, has received notice from Behringer, threatening legal action over stories by Musicfan that called Behringer a “copycat.”

Midifan is a Chinese-language site, but evidently a significant one for that market. And Nan Tang, CEO and founder of the site, is also co-founder of 2nd Sense Audio, the software developer behind the WIGGLE synth and ReSample software. Nan, also known at musiXboy, contacted CDM with the news.

Nan has provided CDM with Midifan’s own English translation of the legal letter, as well as a statement in English. Translation is an important factor here, given we’re talking about libel, but Midifan’s English translations here for what they wrote are “shameless” and “copycat.”

Here’s the statement from Midifan:

Behringer sued Chinese media Midifan for saying them COPYCAT and shameless

Chinese portal website Midifan has received a lawyer’s letter from Behringer last week. Behringer claimed the fact that Midifan repeatedly reporting news about Behringer without any factual basis and using insulting words such as “copycat”, “shameless” has caused the reputation of the four clients (Uli Behringer, MUSIC Tribe Global Brands Ltd, Zhongshan Behringer Electronic Co., Ltd and Zhongshan Ouke Electronic Co., Ltd) to be seriously damaged.

The law firm worked for Behringer also claimed that they have reported to its local public security agency and plans to pursue legal responsibilities through criminal way.

A manufacturer taking legal action against music press for being critical or even calling it names is as far as I know fairly unprecedented. I’d almost call it shamel– actually, let’s just stick with “unprecedented.”

But it appears the letter is threatening criminal libel proceedings in China, not just civil charges. Criminal libel can carry more serious consequences; as reported in 2013 by The Guardian and Bloomberg, criminal libel in China can carry up to a three year prison sentence.

Ceci n’est pas une imitateur.
Behringer showed … uh… tributes to the Roland SH-101, , Roland VC-330, Roland TR-808, ARP Odyssey, and Sequential Prophet One in Berlin last month.

That said, in China as internationally, the law states that something is only libelous if it’s untrue. The “copycat” reference refers to Behringer gear shown at Superbooth, for instance, that literally was designed to look and sound like classic instruments (Roland TR-808, Sequential Circuits Prophet One, etc.). “Shameless” is a matter of opinion. Arguably, too, sending cease and desist letters to media outlets because they called you shameless and a copycat would presumably also not be a great way to demonstrate you possess shame.

Behringer Pro-One, 808, ARP Odyssey Clones At Superbooth 2018 [Synthtopia]

What might make Midifan different from other English-language sites that used similar language? It may be relevant that at the end of last year, Midifan reported on striking workers in a manufacturing facility Behringer owns, where labor complained about health issues. (That article has a number of photos, as well as English-language response from Behringer managers instructing workers to keep windows closed.)

For their part, Midifan have posted a response on their site (no English translation available):

https://www.midifan.com/modulenews-detailview-29955.htm

Midifan tell CDM that they have removed all references to the words “copycat” and “shameless” and replaced them with “more neutral words like “TRIBUTE and CLONE.”

Here’s the full letter from Behringer as translated by Midifan into English.

Lawyer’s Letter
In Relation to Urge You to Stop the Willful Infringement Behavior

Dear Sir or Madam,
Upon the entrustment of Zhongshan Behringer Electronic Co., Ltd (hereinafter referred to as Behringer Corporation), Zhongshan Ouke Electronic Co., Ltd (hereinafter referred to as Ouke Corporation), Uli Behringer and MUSIC Tribe Global Brands Ltd, Guangdong Baoxin Law Firm sends you the lawyer’s letter to your company on matters that urging you to stop the willful infringement behavior.

In accordance with the information and statements from four aforementioned clients, MUSIC Tribe Global Brands Ltd is the registered holder of the trademark “BEHRINGER”. On the basis of the authorization of MUSIC Tribe Global Brands Ltd, Ouke Corporation has the right to use the “BEHRINGER” trademark to engage in production and business activities within the scope of relevant authorizations. Behringer Corporation,whose English name also includes the word “Behringer”, is an affiliate enterprise of MUSIC Tribe Global Brands Ltd and Ouke Corporation.

Since 2017, you have continuously published articles such as “Exclusive breaking: Behringer’s recent crazy copycat stems from a trap of imitation chip more than a decade ago.” “, Can’t stop copycat: Behringer will make the Eurorack module next?” , “Shameless: Behinger exhibited copycat of TR-808, SH-101, Pro-One and Odyssey” on the website “https://www.midifan.com/”

and

Tencent WeChat public account “Midifan” without any factual basis, claiming that the above four principals have plagiarized the products of other companies. Beyond that, the fact that you repeatedly used insulting words such as “shameless”, “copycat” has caused the reputation of my four clients to be seriously damaged.

In view of this, Ouke Corporaiton has reported to its local public security agency and plans to pursue your legal responsibilities through criminal way. Meanwhile, the four principals entrusted me with this letter expressly:

Please be sure to remove all the insulting infringement articles four principals involved and other related information posted on the internet platform such as “https://www.midifan.com/” and Tencent WeChat public account “Midifan” , etc. within seven days of receipt of this letter, and issue a clarification announcement within the above-mentioned period to eliminate all adverse effects caused by the negative reputation of the four principals due to your inappropriate comments.

If you fail to perform the above obligations within the time limit, the four principals will continue pursuing your legal liabilities (including but not limited to
the criminal responsibility for defamation) through legal ways. All consequences and expenses resulting from this shall be borne by you.

In order to avoid inconvenience, please weigh the pros and cons and perform the above obligations in a timely manner!
Best regards.

CDM has reached out to Music Tribe / Behringer for comment via their public contact form, but has not yet received a response. Curiously, I found many of my colleagues don’t have direct, current media contacts with the company.

Oh, also – it seems Germany has criminal libel laws, too. So, naturally, let me then reiterate – what I saw at Superbooth were … meticulous recreations of famous electronic instruments of yore by a …. manufacturer of equipment that is … Behringer.

Now, please, I don’t want to go to German jail. Aber wenn ich ins Gefängnis gehe, wird sich mein Deutsch verbessern.

http://midifan.com/

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What it means that the MeeBlip synth is open source hardware

meeblip_albino

The MeeBlip synthesizer project is about to reach five years old. I feel this collaboration between me and engineer James Grahame has been one of the most important to me and to CDM. We haven’t talked so much about its open source side, though – and it’s time.

In five years, we’ve sold thousands of synths – most of them ready-to-play. The MeeBlip isn’t a board and some bag of parts, and it isn’t a kit. You don’t need a soldering iron; after our very first batch, you don’t even need a screwdriver. The MeeBlip is an instrument you can use right away, just like a lot of other instruments on the market.

But unlike those other instruments, the MeeBlip is open source hardware. Not just the firmware code, but the electronics design that makes it work are all available online and freely-licensed. We became, to my knowledge, the first ready-to-play musical hardware to be available in that form in any significant numbers.

That’s not to brag – we should actually consider whether we’re innovative, or whether we’re just plain crazy. Being end user open source hardware isn’t just unusual in music. It’s still a tough sell in hardware in general.

When we embraced the idea in 2010, we frankly didn’t know whether it would work. Now, I think we can have some new confidence – not just for us, but for anyone interested in the concept. So let’s talk about how open hardware works, why we think it will continue to work for the MeeBlip, and how people interested in making hardware can make it work for them.

There is a definition for open source hardware

The 2010 launch year for MeeBlip also saw the release of the Open Source Hardware Definition and the first big annual summit on the topic. I was lucky to get to know the two women who spear-headed making these things happen – Ayah Bdeir (founder of littleBits) and Alicia Gibb. You can read our interview with them from the time, which covers a lot of history.

The final definition is here:
http://www.oshwa.org/definition/

And in fact, the Open Source Hardware Association has its annual summit tomorrow in Philadelphia. James is heads-down in Calgary, and me in Berlin, so we can’t make it – hope we can see a European satellite event soon:
http://2015.oshwa.org/

There were a lot of significant folks contributing to that definition. Creative Commons, littleBits, MakerBot, SparkFun, Wired, Make, Arduino, Adafruit, the MIT Media Lab, NYU ITP, and Parallax are all onboard – and I see a lot of old NYC friends, the kinds of people (some of them now more famous, like Bre Pettis and Limor Fried). Like a lot of ideas, it helps to be in a scene; it made a big difference to me to get to know these people and talk to them about it.

What they did in the end was to closely follow a software definition, the Open Source Definition for Open Source Software built by Bruce Perens and the Debian.

anodeinnards

MeeBlip has to do some work to be open source hardware

It’s been great to see the for-sale music technology field get more open. We’ve seen makers publishing schematics, releasing open source firmware, and more. But to be really open hardware, the standards are tougher.

Manufacturers who want to call themselves open source hardware have some work to do. The OSHW definition is a really tough definition, but we have done our best to understand and follow it. You should definitely read the whole definition if you’re interested, but here are the big points:
1. The design is public.
2. The source and documentation are public, and in a way that lets you modify it, using an all open source toolchain.
3. You can learn from that design, modify it, make the hardware yourself, and make and sell your own derivatives.
4. A license guarantees your rights to use the tool, without discriminating against how you use it or what you use it with. (That doesn’t come without obligations to the user, though; see below.)

We meet all those manufacturer obligations with the open source components of the MeeBlip, including the front panel. Enclosures are a separate problem, because you design an enclosure specific to the equipment used to manufacture it – yes, even a 3D printer doesn’t really solve that. (Think of it this way: you can’t make a recipe for cake without specifying what kind of cake.) So our enclosure is proprietary, as it’s specific to our manufacturer, but I’d actually love to see people make and share custom, fully open enclosure designs in the future.

There are two aspects to this. The one you probably know best is the license – for the MeeBlip, that includes the GPL v3 (for code) and Creative Commons BY-SA (for hardware designs and look). But the job of the manufacturer is to provide both the design/documentation and the license.

Think of it like building a public park: you need the actual park first, and then maybe a sign that explains to people how they are allowed to use it. As with that sign, just posting rules isn’t enough to make them magically happen. And as with a park, odds are other park-goers, not the police, will be the ones who are most effective at keeping each other to the rules.

meeblipkeyboard

Sharing is generous – but it has obligations, too

“Open source” is not a free-for-all, not an invitation to give away your work – not with software, and not with hardware. It’s a system that works when all the participants understand and act on their obligations.

For most people, this isn’t an issue. The whole point for us is to make the MeeBlip as accessible as possible. We hope you’ll poke around the code, even if you’re not a programmer. We hope you’ll look around the circuits and learn them.

Where your obligations come in are if you want to share something you’ve made.

The first and most important requirement is attribution. If you make something based on the MeeBlip, you have to tell people you’ve done so. And that should be a standard for anything we make, even before we get into licenses or legal obligations – this is what’s ethical. Folk singers will often introduce a song by saying who wrote it, or who taught it to them. In synthesis, we’re very often proud to be connected to those who came before.

The second obligation is to contribute to the open source process. This means that if you share something you’ve made with others, you need to make sure the license goes along with it. That way, derivative products give people the same freedoms the original does.

The licenses actually require you to do this, too. We use “copyleft” licenses for our code and our designs. This means that any derivative works have to have the same license. It doesn’t mean you can’t combine the MeeBlip with proprietary tools – the open source hardware definition actually says you’re free to use whatever you like! But if you make a new synth based on the MeeBlip, you need to share what you’ve changed. An easy way to do this is to simply “fork” the GitHub repository, as that also lets people see your changes versus the original, and makes it easy to link between versions.

We know a lot of this can be complicated. So, the easiest thing to do if you’re thinking of making something is simply to get in touch. We’d really enjoy the chance to talk to you about it, and we can probably help you through what might otherwise be a tricky process.

We will certainly enforce these rules. That doesn’t mean stopping anyone from making hardware – on the contrary, we want to help people make any derivatives correctly.

We recently encountered a synth builder who had made a copy of the MeeBlip anode hardware; the internal electronics had only minor modifications and the firmware and use were identical. In this case, we did point out that James’ engineering work wasn’t attributed, and we made ourselves available to help that builder follow the rules and follow these licensing requirements. That builder seems to have decided not to pursue that project, but we’re still available to them and anyone else who wants to do this. We are literally volunteering our time to help you do it, so it’s the very opposite of trying to stop anyone from modifying or producing derivatives of the MeeBlip.

meeblipfamily

How are we doin’?

I’m proud of the first five years of MeeBlip, but we’re only getting started exploring its open aspect. What we have seen is some immediate advantages to open source synthesizer hardware.

People are learning from the project. We’ve had many MeeBlip customers poke around in the code and schematics. We’ve been able to use those to answer questions, for the more technically minded. And people have used this exhaustive documentation to make some of their own projects.

People do fabricate their own synths. There are markets where we simply can’t afford to sell the MeeBlip. In those corners of the world, it can be cheaper and more efficient for people to make their own. Because the MeeBlip uses all standard parts and nothing unusual or proprietary, they’re free to do that, and a handful have. And meanwhile, in the rest of the world, we can usually provide a better value proposition than the DIY method – so this freedom doesn’t put us out of business.

Open source is peace of mind. In an age when so much is relegated to sales cycles and doomed to wind up in landfills, having open source hardware means you know a product becomes obsolete far less easily.

Openness can lead to modifications. We’ve even seen some firmware suggestions from users. We’ve people build their own, very often amazing, enclosures. Just having schematics available makes this easier.

But look beyond the box. Now, there’s a whole lot more to do. Giving musicians the freedom to modify their instruments is more than just providing documentation and licensing. They have to have the know-how to do this.

This has probably been our biggest failing, but also our greatest opportunity. The next stage is really applying that openness as a way of helping people learn more about electronics, code, and synthesis. Now that we’re smarter about the product side, I hope our next five years are more about the experience side – from the end user just learning to make sounds for the first time to those delving deeper into engineering and invention.

And don’t be afraid. Fear has I think been the greatest obstacle to open source hardware. It’s clearly not the right paradigm for every project. On the other hand, I think fears about clones and theft may overestimate the dangers – at least when it comes to music.

Ultimately, what allows an open project to be effective is a respect for sharing and originality. And that’s where I think the music community has something special. Provided we keep our brand clear, I’ve been struck by how willing musicians are to invest in buying direct from the maker, and recognizing designs that are original.

The reality is, no one is stopping clones with or without special licenses. Even many mid-sized manufacturers can’t afford intellectual property litigation; most can’t afford patent registration in the first place, which these days is often a vanity project.

But what we can do is build a community of people who care about music, about musical instrument design, and about sharing what they do. Those are the people who will value originality. They’re the ones who challenge us makers to be better.

The history of electronic musical instruments is rooted in sharing. Theremin’s designs inspired Bob Moog. How-to-build-your-own-Theremin articles inspired future synth builders – and engineers in many other fields, not just music. Learning from a filter design or a sound routing architecture became a 20th century analog to details of woodworking and drum heads in acoustic instruments from years before. Sharing how we make musical instruments is part of what makes culture.

You can get an anode right now. The limited edition white MeeBlip anode is still available – but we expect quantities are about to run out, now that summer is over.

Get yours from us direct:
Get MeeBlip anode Limited Edition

For a limited time, shipping is free (US/Canada) or reduced (US$9.95 worldwide with tracking info – customs may apply).

The post What it means that the MeeBlip synth is open source hardware appeared first on Create Digital Music.

As PRS battles SoundCloud, what does it mean for your own music?

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PRS for Music, a UK performing rights organization, at the end of last month sued SoundCloud for copyright infringement on behalf of its members.

The action may prove a decisive moment for the Berlin-based streaming service. It represents a collision between SoundCloud’s approach and the organizations involved in administering copyright, and more broadly, between the conventional models for sharing and monetizing music and those evolving on the Internet.

I spoke to representatives from PRS and SoundCloud to try to get greater clarity. Those responses were naturally a bit guarded, as the two are actively engaged in legal action. However, there’s a lot you can read into what they’ve said, and the conflict more generally.

Even if you don’t use SoundCloud, there are some major implications for the way in which music is shared online – let alone if you are specifically licensed by PRS. (And you don’t have to live in the UK to be part of this legal action – more on that in a bit.)

First, let’s deal with the public statements made about the case, and understand what we’re talking about. When copyright laws were written, the Internet didn’t exist. This has produced a somewhat counter-intuitive distinction in the work itself (the composition – the thing you’d traditionally have written on paper), and the recording of the work. Those are licensed separately, and that’s because the legal notion is that the transmission of a recording is both a “performance” of the work itself, and a use of the recording material. That is already somewhat confusing in the United States, and then when you stream on the Internet, you’re subject to separate laws in every single separate provinciality abroad.

When we’re talking about PRS, we’re talking about performing rights. These produce royalties that are administered to members representing songwriters and publishers; if you self-released, you’re effectively both. If you’re a member of ASCAP, BMI, SESAC, GEMA, or one of another organizations, PRS is actually also collecting royalties for your music in the UK.

That means it’s very possible you, the reader, are in principle named in this suit. Here’s where things get a bit weird. Let’s say you’ve got a song you recorded, and you’re an ASCAP member in Texas. And let’s say you – or your label – uploaded that music to SoundCloud, which you very likely have the right to do (it’s your music). Now, technically, your own upload just infringed your own copyright, if PRS claims that it needed a performing royalty. In fact, theoretically, if you uploaded your music to your own site – not SoundCloud’s – you would still be owed a performing license, one paid by yourself through PRS and back to you again. It’s just unlikely that if it were your own site, or your label’s site, anyone would show up trying to enforce the copyright. SoundCloud is different.

By the way, even SoundCloud explains that it is possible to infringe your own copyright. (It’s possible to do this even on your own site – which is why I think not joining a performing rights organization may become a compelling possibility to consider in the digital world, depending on your particular use case). From their copyright case:

Can you answer “no” to all of the following questions?

Were you signed to a record label when you recorded the track?
Do you have a publishing deal?
Are you a member of a performing rights organization or collecting society?
Have you licensed your track to anyone else?
Does the track contain the entirety or any part of someone else’s song(s) Is it based on someone else’s song(s)?

Now, more broadly, SoundCloud also clearly has a lot of music that wasn’t uploaded directly by creators. Apart from the frequent use of DJ mixes, there’s some content that is simply straight out infringing. But to be clear, this lawsuit doesn’t differentiate between those cases: it’s claiming royalties for all three.

PRS sent a letter to its members (now, this wasn’t addressed to the many more overseas artists it represents, but just those who are directly registered with PRS):

Dear Member,

PRS for Music begins legal action against SoundCloud

After careful consideration, and following five years of unsuccessful negotiations, we now find ourselves in a situation where we have no alternative but to commence legal proceedings against the online music service SoundCloud.

When a writer or publisher becomes a member of the Performing Right Society, they assign certain rights to their works over for us to administer, so it’s our job to ensure we collect and distribute royalties due to them. SoundCloud actively promotes and shares music. Launched in 2008, the service now has more than 175m unique listeners per month. Unfortunately, the organisation continues to deny it needs a PRS for Music licence for its existing service available in the UK and Europe, meaning it is not remunerating our members when their music is streamed by the SoundCloud platform.

Our aim is always to license services when they use our members’ music. It has been a difficult decision to begin legal action against SoundCloud but one we firmly believe is in the best, long-term interests of our membership. This is because it is important we establish the principle that a licence is required when services make available music to users. We have asked SoundCloud numerous times to recognise their responsibilities to take a licence to stop the infringement of our members’ copyrights but so far our requests have not been met. Therefore we now have no choice but to pursue the issue through the courts.

We understand SoundCloud has taken down some of our members’ works from their service. With our letter of claim, we sent SoundCloud a list of 4,500 musical works which are being made available on the service, as a sample of our repertoire being used, so that they understood the scale of our members’ repertoire and its use on the service. We asked them to take a licence to cover the use of all our members’ repertoire or otherwise stop infringing.

SoundCloud decided to respond to our claim by informing us that it had removed 250 posts. Unfortunately, we have no visibility or clarity on SoundCloud’s approach to removing works, so it is not currently clear why these particular posts have been selected by them given the wider issue of infringement that is occurring. Ultimately, it is SoundCloud’s decision as to whether it starts paying for the ongoing use of our members’ music or stops using these works entirely.

If the streaming market is to reach its true potential and offer a fair return for our members, organisations such as SoundCloud must pay for their use of our members’ music. We launched our Streamfair campaign in June to raise awareness of this issue and highlight how music creators need to be properly remunerated from streaming. We believe that all digital services should obtain a licence which grants them permission to use our members’ music and repertoire, in this case the works of songwriters, publishers and composers.

The streaming market cannot fairly develop unless this happens. We have always been pro-licensing and pro-actively work with organisations in order to propose an appropriate licensing solution for the use of our members’ works.

We remain hopeful that this matter can be resolved without the need for extended litigation. Members will appreciate that this is now a legal matter and our ability to communicate around it is therefore limited by the legal process. However, we will try to share information and updates whenever we can.

Emphasis mine. There are already several points here to digest:

First, this has been ongoing for five years – a point that’s likely to come up in legal proceedings.

It’s also telling that SoundCloud believes it doesn’t need a license for UK and European streaming. Now, that may sound really strange, but remember that this doesn’t mean the music would be entirely un-licensed or even un-monetized.

And this sheds some light on take-down notices – or, at least, it makes it clear that we’re still in the dark. PRS is expressing the same frustration with SoundCloud that a lot of SoundCloud users have: the service simply isn’t explaining how it decides to take content down. And it seems to be fairly random: the 4500 works listed by PRS here are presumably a small fraction of everything it could have sent, and then SoundCloud removed a small fraction of that (if PRS’ statement is accurate).

But it’s also historical here that PRS continues to rigorously defend the need for licensing. And I wonder, actually, why that isn’t a matter for open debate. The traditional music stakeholders – even the ones that may represent you – continue to argue for licensing as the panacea for streaming. But as I said, the entire licensing model is complex. It’s also weighted heavily toward bigger labels and publishers, because they can sign deals with artists that ensure them a big piece of the pie, and then aggregate a lot of different content so the royalties add up.

That is, there are two points with which you might disagree. If you’re a lawyer, you can argue the details of whether SoundCloud is genuinely liable for this specific license (not to play music for free, but to pay for the PRS license in Europe). And if you’re an artist, entirely independent of that, you might ask whether PRS’ licensing scheme is best suited to making you any money on the Internet. If you believe the answer is no, you shouldn’t join a performing rights organization. Performing rights organizations would like you to believe the answer is yes.

What’s unclear is what PRS is suing for. There’s an implication here that by arguing with SoundCloud’s Safe Harbor status, PRS could sue SoundCloud not just for royalties now, but for all back royalties over the course of half a decade. I think that would almost certainly shutter the entire site overnight, which could have a devastating impact on artists and labels.

I asked PRS explicitly what their goal was, though, and it’s clear that they remain primarily interested in the site operating with a license in place. The thing is, if PRS did shut down SoundCloud, while it would prove a point, it would both anger members who use the service and by definition would eliminate royalties on hundreds of millions of future plays.

For some really good analysis of this statement and that quote in particular, see Music Business World this week
PRS VS. SOUNDCLOUD: 5 KEY TALKING POINTS TO CONSIDER

I think the key is, PRS and the labels really need SoundCloud as a big entity for licensing to work at all. See also their deal with Spotify. This sort of homogenization of streaming makes the job of licensing far easier.

SoundCloud wouldn’t comment directly on this case to CDM (PRS did), but instead a spokesperson for the company pointed me to their existing statement:

It is regrettable that PRS appears to be following this course of action in the midst of an active commercial negotiation with SoundCloud. We believe this approach does not serve the best interests of any of the parties involved, in particular the members of the PRS, many of whom are active users of our platform and who rely on it to share their work and communicate with their fanbase.

SoundCloud is a platform by creators, for creators. No one in the world is doing more to enable creators to build and connect with their audience while protecting the rights of creators, including PRS members. We are working hard to create a platform where all creators can be paid for their work, and already have deals in place with thousands of copyright owners, including record labels, publishers and independent artists.

There’s not much here that answers PRS’ claims; we actually know more about SoundCloud’s likely position from the PRS statement than the SoundCloud statement. But note that the deals they have in place don’t mention performing rights organizations – and remember, there are two kinds of licenses we’re describing here.

PRS did clarify their position a bit for CDM. Here’s that exchange:

CDM: Whose works does this suit cover? I know there is a representative list, but is the case built around all PRS-represented music? I assume it includes, for instance, partners like ASCAP (when played in European territories)?

PRS: Our legal action covers all PRS for Music member repertoire.

PRS recently announced a multi-territory deal with Spotify Europe. How are those royalties calculated? This is some sort of fixed statutory rate per play?

PRS: There is no statutory licensing rate in the UK, although the Copyright Tribunal was established to adjudicate licensing disputes in the UK between copyright owners (incl. collecting societies) and businesses using copyright music on the issue of the reasonableness of rates, amongst other things. In relation to Spotify, this is a bespoke negotiated licence and as such the terms are confidential.

Ed.: Okay, here my question shows a bit of ignorance – I’m referring to the kind of statutory licensing set in the United States, where the federal government fixes rates. I’ll be the first to admit that while I’m definitely not an expert on US IP law, I’m even less familiar with the law in the United Kingdom.

But notice – PRS want you to believe that licensing is the way to go. But the deals on which you depend are completely confidential. So you’ve got a choice: SoundCloud not telling you why they’re removing your music, or PRS not telling you how their licensing deals work. Transparency isn’t really coming from any of these players here. And the entire system at this point depends on one-by-one, independent negotiations.

Next, I dealt with the scenario above – creators registering their works who then upload music to a service in a way that infringes not someone else’s copyright, but their own.

For many of our readers – and again, many of them themselves members of PRS (or other performing rights organizations) – the material on SoundCloud is work they’ve uploaded with the intention of sharing. What would you say to those artists when they find that this use on SoundCloud is being targeted by PRS? Isn’t there some conflict of interest when, for instance, SoundCloud asks them to take down music they uploaded themselves, in response to a complaint by a performing rights organization? Or do you believe those artists are not acting in their own self-interest when they upload music in this way?

PRS: When a writer or publisher becomes a member of the Performing Right Society, they assign certain rights to their works over for us to administer. This means we are then able to efficiently and effectively license organisations for their use of our members’ work, then collect and distribute royalties back to the members. Licensing protects the interests of all of our members, very many of whom are having their content used by SoundCloud without their permission, expressed or otherwise. Our members all agree that they should be paid to have their content used by third parties and sometimes the achievement of this goal means having to make difficult decisions for the collective good. We understand that many of our members use and appreciate the service provided by SoundCloud. At PRS for Music we can also see the value that a service like SoundCloud could add to the market if it were operating with proper licensing. But as things stand, our members receive nothing for their content being consumed on SoundCloud.

There are a couple of important points they make in response. One, as I said, if this were just creators uploading their own music, it would be one thing. But as was the case with YouTube, as long as these sites have mixes and so on, it’s another story.

Two, though, note that PRS also recognizes their own members are SoundCloud users. That makes me wonder if they won’t try to use this legal action to find a deal – which is what I ask next.

What’s the end game here? You say you hope not to have extended litigation, but do you believe SoundCloud owes back royalties for the five years during which you’ve been in negotiation?

PRS: The primary aim is to move SoundCloud towards having a fully licensed service that fairly pays our members when their music is used on the service.

That’s important, as this means the goal is a settlement in which SoundCloud keeps operating.

Now, it also made sense to talk to SoundCloud. The only way that company – billion-dollar valuation or no – can work with stakeholders is if it’s actually bringing in money as it’s promised. Eric Wahlforss, who also spoke on a panel I hosted this summer, responded to those issues.

CDM: Am I correct in understanding that monetization – and presumably, revenue that would impact licensing music – is going to be based on some combination of subscription and advertising revenue?

Eric: On SoundCloud enables our Premier Partners to monetise their content through advertising, and to earn a share of the resulting revenue. This will also include a share of revenue from our subscription products once they’re launched.

We’re now over a year into the On SoundCloud program. Are there advertisers onboard that you can talk about? That is, I’ve seen some of the publishers; how is the monetization picture? Earlier this year you mentioned $1 million in advertising payments, is there a new number?

Eric: Since the launch of On SoundCloud we’ve paired brands like Jaguar, Sonos, Microsoft, Taco Bell, Asics and Axe with SoundCloud creators like Sizzlebird, ILoveMakonnen, Metro Boomin, Viceroy and Big Data. These partnerships have helped artists shine an additional spotlight on their work, while getting paid in the process.

Our native offering, ‘promoted tracks’ puts branded content at the top of every SoundCloud users stream to drive engagement: plays, likes, reposts, shares. For example, HBO has worked with SoundCloud to launch their shows including ‘Catch the Throne’, which was used to promote this year’s series of Game of Thrones.

We’re yet to release new payment figures but the number is obviously growing month on month.

Ed.: the absence of payment figures here is a bit frustrating, actually – cue Dr. Evil quote about “one millllllion dollars.” Then again, remember YouTube faltering early on in ad revenue. It’s tough. The one ace in SoundCloud’s hole is, at least they have creators willing to pay for subscriptions. That makes them very different from services like Spotify, which are really mostly about consumption.

Is there any updated timeline as far as rolling out On SoundCloud to more users?

Eric: On SoundCloud remains invite only at the moment and we’re still adding new partners as fast as we can. We started with 20 select partners representing 2,000 labels at launch, and have now grown to over 600, representing over 25,000 labels, many of whom are independents. These include Merlin and Warner Music Group, as well as a landmark partnership with the National Music Publishers Association in the US. Our goal remains to provide monetization opportunities for all creators on the platform.

The addition of labels is the important one, even if some big players still aren’t onboard. And that also shows some overlap between the stakes of labels and performing rights organizations.

Is providing paid listener subscriptions still on the table? (Am I correct in understanding that’s an option?)

Eric: We will be launching listener subscriptions in the future. Our subscription philosophy is about delivering subscribers additional functionality, and the free tier will continue to be a core part of our platform for creators and listeners in a way that is complementary to our subscription services.

Conclusions

Let me be perfectly frank: I think as creators, we want this to work out. First, PRS has a point. Without getting into the fine points about which licenses work in which localities internationally, SoundCloud simply has to do a better job licensing the music on its site – like, licensing it at all, in most cases. I think we should have a debate about what sort of copyright framework makes sense, and whether licensing is really a model that works for artists. I know the people who believe that it does work are often very open to talking about that, so this can be a vigorous and valuable debate.

But we can only have that discussion if the basis of copyright law remains enforceable and (while this may seem near-impossible) enforceable internationally. Even those of us who are advocates of open source licensing or Creative Commons licensing depend on copyright law as a foundation. (That’s why you have so many lawyers involved in those issues.)

At the same time, whatever high-minded argument PRS wants to make about licenses, it’s ugly if we imagine a world without SoundCloud. Labels depend on streams as a window to actually selling music direct; artists rely on data from listeners and exposure and the ability to promote events and sell tickets. These activities very often far outweigh royalty checks in terms of actual monetary value. If you break SoundCloud, you may well break a lot of the way music is working for artists right now.

This is one to watch. I think it will remain important to see how the SoundCloud case unfolds, because it has implications far beyond the service. And we should also talk about alternatives to SoundCloud that do have licensing in place, for no other reason that I think no single service can serve everyone. YouTube dwarfs Vimeo, on the video side, but a lot of very specific creative niches find Vimeo invaluable. Yet there isn’t yet a “Vimeo for sound,” even as SoundCloud is clearly “YouTube for sound.”

Hey, that was fun! Let’s go listen to some music.

Previously:
Native Instruments CEO, SoundCloud CTO talk music’s future direction

The post As PRS battles SoundCloud, what does it mean for your own music? appeared first on Create Digital Music.

Native Instruments CEO, SoundCloud CTO talk music’s future direction

With each creation tool, each means of broadcasting audio via the Web, the force of music technological access accelerates. What was once limited to an elite able to make use of studios and labels spreads to more corners of the globe. But what will that democratization mean?

Earlier this summer, I got to speak to two people whose companies have been instrumental in the ways in which people make and share music today. Eric Wahlforss is co-founder and CTO of SoundCloud; Daniel Haver is CEO of Native Instruments. Those jobs keep them pretty busy, so this is the first time they’d actually been on a single stage together. We had a public panel discussion (below) followed by a briefer, private interview (above) for Berlin’s Tech Open Air festival in July.

We cover a range of topics from the explosive growth of mobile production and sharing to the influence of online connectivity on genre and geography to new ways of DJing and listening.

The “future of music” isn’t just a catchy theoretical topic for Eric and Daniel – if you’re in that role, maneuvering that future is part of the job description. For Native Instruments, the principle challenge seems to be managing user complexity, and making tools that anticipate a range of essentially unpredictable uses – independent of genre. (Case in point: I’m fairly certain no one at NI would ever have imagined their Massive synth would wind up becoming a signature sound of a hitherto-unheard-of American dance music genre.)

For SoundCloud, it’s working out how to navigate sheer quantity – democratization is a positive force only when combined with successful discovery. The “Hard Wax” metaphor is apt; I’ve heard several people say that they can’t imagine the techno scene today without the landmark Berlin record store. Now, you have a similar transmission of information online in place of the crate digging community.

Eric also describes the various constituent interests on SoundCloud – creators, rights holders, and now curators. And what I found particularly interesting was his desire to balance all these elements and monetize all of them, both via ads and subscriptions.

Of course, on the SoundCloud side, there are a lot of questions I wanted to get clearer answers to that weren’t possible. Eric is eloquent when talking about the monetization vision, but SoundCloud the entity has been mum on specifics of how it will satisfy growing pressures to license content on the service. It seems on one hand, they have a bold vision for how music money could work, but a year after the rollout of On SoundCloud, they seem to be fighting an uphill battle against many of the larger traditional content creators. And to sway those creators, they have to deliver on more of the material value of the On SoundCloud program. Eric went into more detail on the monetization topic late last year at TechCrunch Disrupt in London, also worth watching if this subject interests you:

Since Eric’s appearance with us, the plot has thickened. British performing rights organization PRS has sued SoundCloud after the group says five years of negotiations broke down. It’s worth understanding, though, that the question of licensing involves some counter-intuitive situations. For instance, let’s say you upload your own music to the service – but that same music is something you’ve registered with a performing rights organization. Now, even though you uploaded it, your music should technically cost SoundCloud any time someone plays it. (Incidentally, you don’t have to be British in this scenario: PRS is also collecting, say, American songwriters represented by ASCAP and BMI, and other similar organizations around the world.)

Label negotiations, which are handled via a separate license, are facing their own problems – Sony has pulled out complaining of a lack of monetization options. Even this distinction between writers, publishers, and labels, each requiring separate licenses, itself illustrates the collision between a system built for old media and the way music is shared via new media.

Simultaneously, succumbing to external licensing pressure and legal obligations is prompting SoundCloud to step on the toes of some of its own users. The situation with takedowns was neatly summed up by Fact Magazine with the pithy headline, “What the hell is going on with SoundCloud?”. (Rough answer to that question: what’s going on with them is that they’re trying to curtail use of certain materials before they wind up in legal troubles that could shut down the site.)

SoundCloud hasn’t yet offered an on-the-record explanation to requests for comment from CDM on some of these issues.

However, I think that makes the perspective of NI and SoundCloud looking into the future no less compelling. Musical practice continues to transform, even as the institutions that handle licensing and payments may steadfastly insist on their existing frameworks.

Here’s our full panel discussion – realizing we balance very different challenges faced by one of the world’s leading tool creators and the world’s leading sound sharing tool:

The post Native Instruments CEO, SoundCloud CTO talk music’s future direction appeared first on Create Digital Music.

Grooveshark Streaming Site Dies, Apologizes

I fought the law and the law won.

Grooveshark, announcing the April 30th shutdown of their streaming music service:

We failed to secure licenses from rights holders for the vast amount of music on the service.

That was wrong. We apologize. Without reservation.

They go on to concede that hundreds of other services provide the same ability to listen to music without violating the ownership of music. And they’ve lost everything, from patents to the site itself.

Side note: Grooveshark was to Gainesville, Florida a bit as SoundCloud is to Berlin, Germany – a streaming startup that became a flagship of the scene. Drawing from the nearby University of Florida, the site was somewhat innovative when it launched, but anyone familiar with the legal requirements of streaming would be aware their clock was ticking.

To be honest, I don’t think this is a choice about freedom or free music, but about the rule of law. I suspect there’s not a person among us who hasn’t violated intellectual property in the form of unlicensed media. But to actually build an entire commercial service outside of that law and profit on these violations defies any notion of the ability of creators to choose what happens to their work. And that legal framework means that there is some discussion between rights holders and services about what happens next.

Meanwhile, it seems that with the ability to use the likes of Spotify – or, heck, even Tidal – few will mourn Grooveshark.

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Don Buchla Takes Owners of His Former Synth Company to Court

buchlaupclose

Several major figures in synthesizer history have lost control of their names over the years. Robert Moog sued in 1998 to get his name back on synths; that court battle, with Don Martin, was won in 2002 and allowed the modern Moog Music to supplant the former Big Briar. While Dave Smith never lost access to his personal name, he gave up his original brand name Sequential. Yamaha voluntarily surrendered the Sequential badge earlier this year.

But a new legal battle between Don Buchla and the current Buchla Electronic Musical Instruments is unprecedented on a number of levels.

First, Buchla (the brand) is unusually dependent on Don Buchla’s legacy. Don’s mug shot appears the moment you open the site, with a long history that talks about him (by first name) before ever mentioning the product. There are top-level menu items on the site for “History of Buchla” and “Don Buchla.” And the products themselves are high-end, boutique devices, sold with the expectation that you see a Buchla synth as worth more than someone else’s synth.

What you won’t see on that site is the fact that Don Buchla himself was terminated from the company that bears his name, back in April 2014. And you definitely won’t learn that Don Buchla is now suing this new company and its parent, Audio Supermarket Pty. Ltd. of Australia, for breach of contract.

And that legal battle seems likely to get very ugly indeed, uglier than anything I can recall in the time I’ve been covering electronic instruments.

The legal dramatics begin right in the introduction, including the suggestion that Don Buchla may have invented the synthesizer: “In 1962, he began work on one of the first, if not the first, music synthesizer: the Buchla Series 100.” (Emphasis theirs. But I can answer that: no, not the first.) It also describes his battle with cancer and calls his buyer tortuous and malicious. At one point, the complaint includes a claim by Don Buchla that the new buyers cause a stroke he suffered in 2014.

But moving as those arguments may be, they’re not the substance of the case. Let’s cut to the material specifics. The suit claims:

Buchla allegedly was pressure into unfair terms. Don Buchla signed a Memorandum of Understanding – not yet an explicit purchase agreemement – in November 2011, according to the suit. At this point, he didn’t yet have legal counsel. Those same terms did find their way into an Asset Purchase Agreement and an Employment Agreement (after which Don Buchla did engage counsel).

The new owners allegedly breached the purchase terms. There are three parts to this: first, that the defendants paid under $110,000 instead of the $550,000 the suit says they were obligated to pay (regardless of sales); two, that they failed to pay a $30,000 closing cost; three, that they failed “to use reasonable business efforts to reach sales targets.” That final charge seems harder to prove, but the former two would seem to depend on a reasonably straightforward reading of the agreements. (Without seeing them, it’s impossible to know.)

The new owners allegedly fired Don Buchla without cause, breaching the employment terms. The plaintiffs allege that Don Buchla was terminated without cause.

The key to how the plaintiffs might try to defend this is in the complaint, in the “bad faith” portion:

“Defendants responded by intentionally seeking to trigger the reduction in purchase price tied to Mr. Buchla’s “unavailability” by, inter alia, making unreasonable, unfair, and/or impossible demands of Mr. Buchla under the Employment Agreement.”

In other words, it appears that both Buchla’s termination and the lower payment price will be connected by the defendants to his “unavailability” under the contract, just as the plaintiffs claim this was the fault of the new owners.

It also appears that sales targets at Buchla aren’t what the parties expected – and that the company may be unable to fill orders or pay suppliers: “On information and belief, Defendants lack sufficient funds to pay Mr. Buchla what he is owed under the Agreements. Defendants have not regularly paid their suppliers and have not fulfilled product orders that were made and paid for in full more than one year ago. ”

The suit names three defendants: Victoria, Australia-based Audio Supermarket Pty. Ltd., the Oregon-based Buchla Electronic Musical Instruments, LLC, and directors and managers of BEMI and Audio Supermarket in both Australia and the USA. The case’s jurisdictional statement, though, acknowledges that the case relies on business conducted in the US, and there’s reference in the document to attempts to shield assets of the Australian side of things by removing that company from the MOU.

The suit seeks to declare the contract void and return Buchla’s name, intellectual property, assets, and even purchase orders to Don Buchla, plus damages – or provide $500,000 in damages or more for breach of contract.

Whatever the claim, it’s unclear whether the Buchla brand will survive the legal proceedings here.

You can read the document filed on Justia:
Buchla v. Buchla Electronic Musical Instrument, LLC et al

Thanks to Tom Whitwell for bringing this to my attention. He also got the attention of FACT.

If we get any additional information, or analysis by someone familiar with this kind of case, I’ll provide an update.

http://buchla.com/

The post Don Buchla Takes Owners of His Former Synth Company to Court appeared first on Create Digital Music.

Robin Thicke Judgment: The Day Copyright Law Died, Again [Opinion]

When we last joined the American courts’ impossibly damaging precedents for copyright law, an appeals court decided to blow away the de minimis doctrine for sampling. That’s “de minimis” (Latin), as in “size matters not” (um… Yoda).

The idea was, there was no need to measure the significance or size of a sample in the N.W.A. song “100 Miles and Runnin’.” The court helpfully offered at the time, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” Here’s a reasonable summary (my Keyboard article I think is not online):

Bridgeport Music, Inc. v. Dimension Films

In fact, many at the time thought that stifling creativity is exactly what could happen. Without a de minimis standard, or “bright line test,” any sample becomes infringement. A common sense law wouldn’t do that: almost any logic of justice looks at harm and amount. (Imagine if shoplifting counted stealing a corner of a leaf from a strawberry.) With digital sampling, just working out where sounds have come from can be a challenge. As if to illustrate that point, you’ll notice that the N.W.A. case involved Dimension Films. The N.W.A. sample was licensed – it just lacked mechanical rights, so Bridgeport descended on an unauthorized use of the sample (by way of the song) in a film.

Well, here we go again:

Robin Thicke, Pharrell Lose Multi-Million Dollar ‘Blurred Lines’ Lawsuit [Rolling Stone]

Here’s the irony: the Bridgeport case was so over the top that it didn’t stifle creativity. It stifled any lawsuit that would dare cite such a dangerous precedent. Germany, the other country you can count on to be more or less totally insane when it comes to licensing (hello, GEMA overlords), reached a similar case later, but that was it.

In 2005, when the case was decided, I was researching the article for Keyboard. Back then, recording and publishing entities were already scared of the Bridgeport Music precedent. Why? Because it massively expanded potential liability. If a sample could be unrecognizable but still infringement, any material could infringe. A rights owner wouldn’t want to bring a case using that argument over one piece of music, because they might face similar suits.

In other words, the court going nuclear meant mutually assured destruction for everyone.

Well, if you’ve caught the case over Robin Thicke’s “Blurred Lines,” my view is that we now essentially get the same level of absurdity for musical content.

The question is not whether “Blurred Lines” is a good song, or even whether it’s original. Truth be told, it isn’t. It is clearly a tune that borrows heavily from the earlier Marvin Gaye song – it’s essentially a new song written in the old template. And if it comes to taste, many of us would choose Marvin Gaye over Robin Thicke. Ahem. (Even before we get to the ridiculously sexist video.) But taste isn’t what’s an issue. The question is what constitutes infringement in the eyes of the law.

The good news is, the case brought by the Marvin Gaye estate at least does apply some kind of de minimis logic. Musicologist Judith Finell apparently diagrammed some eight similarities in the song, and the closing arguments by the Gaye estate lawyer leaned heavily on that fact. You can follow the closing arguments in the excellent blow-by-blog coverage The Hollywood Reporter has been doing:
‘Blurred Lines’ Trial: Marvin Gaye’s Family Seeks $25 Million in Closing Argument

The bad news is, the actual material isn’t a sample – not in the digital sense as in the N.W.A. song, but not even in the literal musical sense. There are musical gestures and structures that are similar in “Blurred Lines” to those in “Got to Give it Up.”

Whoa – wait a minute. I’m not sure I’d be able to wax poetic about the originality of Robin Thicke, Pharrell Williams and T.I. in the way that their lawyer Howard King does. That’s why I’m not a lawyer. (It didn’t help that Thicke actually testified he was drunk and high on Vicodin at the time.)

But I agree with King’s argument says that “the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.” (See Rolling Stone at the time, covering a pre-emptive lawsuit by the “Blurred Lines” creators under the threat of a lawsuit.) For kicks, our friends at Bridgeport Music were again involved in the suit (those parties reached an agreement).

You can listen to the comparison at top and get a sense of just how wild this gets. As lawsuits around samples first started to pile up in the hip hop world, as those artists were essentially punished for using digital sampling hardware, the solution was to simply play a part on an instrument.

And it’s not as though any of this sort of copyright law or sampling is helping. Years of “Amen, Break” samples left the actual drummer to die penniless – the very thing intellectual property law is supposed to keep from happening. By the standard of this decision, the opposite extreme is true: you couldn’t even play your own breakbeat ever again, because someone else could sue you.

Imagine the history of music if, not only you couldn’t “sample” a few notes by playing them again, but you couldn’t make any musical gestures with similar grooves, rhythmic structures, chord structures, or forms.

Congratulations: you’ve broken music.

Even worse, it seems that the solution would be to make music so generically similar that it wouldn’t sound like anything – you know, more or less a lot of the chart-topping music you hear today. Compare the history of jazz and blues, for instance, which produced creativity partly because so many of the stock elements of the songs were intentionally copied from one piece to another.

To that, the likes of the Gaye heirs now say to any new music, all the things you are, are mine.

And yes, that counts as a chilling precedent.

You don’t really think you’re going to get away, do you? Good luck, brothers.

Hey, the infringing song was pretty damned good, right?

Update:

For a great comparison of the two songs (thank you, Facebook friends), turn to musicologist Joe Bennett, who transcribes the two songs.

Did Robin Thicke steal ‘Blurred Lines’ from Marvin Gaye?

(Spoiler alert – but these excerpts are almost comical to read, if this case weren’t so stupidly tragic.)

When compared note for note like this, the dissimilarity is obvious. These basslines use different notes, rhythms and phrasing from each other. They’re even taken from different musical scales. Thicke’s bass notes are all taken from the mixolydian mode; the Gaye bassline is based around the pentatonic minor scale.

And regarding the Thicke song (chortles all around):

Thicke’s song has more cowbell.

And here’s the best bit, from the legal team behind the Gaye children: “[Thicke has copied] the defining funk of the cowbell accents.”

Cowbell2

Hilarious. So, that makes essentially all music illegal.

If you make music, I would read this case to say you have almost certainly infringed copyright. In fact, if you haven’t, you’re probably terrible at music.

But see my comments above about Bridgeport. It’s such a stupid precedent, it’d be insane to ever apply it.

The post Robin Thicke Judgment: The Day Copyright Law Died, Again [Opinion] appeared first on Create Digital Music.

The Terrible, Horrible, No Good, Very Bad Google Music Contract?

Google isn’t just being a little bad in their contract negotiations with indie labels. In a leak to Digital Music News, it proves to be the worst contract I or anyone I’ve talked to has ever seen, for anything music-related. It puts the “boiler” in boilerplate.

F*&K It: Here’s the Entire YouTube Contract for Indies…

If this leaked contract is what Google still stands by, and current analysis in the music press is correct, the deal is deeply unsettling. It blurs the lines between free and premium services by placing them all under a single contract. YouTube and its Spotify rival would be under one deal. It sets rates independently for smaller labels based on a single, not-very-good fee. And then it protects Google from any action that would stop unauthorized or pirated uploads to their services.

I can sum it up roughly this way, unless I’ve seriously misread the terms and their intentions:

Sign this contract. It covers everything Google does – free (like YouTube) or otherwise. It lets us specify license terms and royalty rates, not you, and not any organisation that represents you. It gives us rights to all your music, and all your music videos, and everything else. It gives us rights to pirated music and videos other people upload, too. And you promise never to sue us.

(and another thing.) Sign it, or we’ll ban you from YouTube for your own content.

The key sections to watch out for: not only is there a “do not sue” covenant that prevents labels from protecting their own content, but it merges free services (apparently including YouTube) with the upcoming premium ones. At the very end, you’ll also find the royalty rates that had frustrated indies, which are reportedly lower than those they had gotten from other sources and lower than what majors had been offered. (The numbers are now out there for discussion.)

But the real surprise here is the lawsuit immunity provision. It’s easy to understand why Google would want it; it’s just that if they succeed in forcing labels to sign, it’s a fairly ugly development. It was already shocking enough that Google would hold hostage music uploaded by artists and labels to YouTube just to get preferential terms for the company on its premium service. It’s even more shocking that it would protect non-authorised, pirated content in the same contract, blurring premium and free services.

Or, as The Register more succinctly put it:

…the move will preserve Google’s illegal supply chain by cracking down on its legal supply chain.

Google’s proposed indie music-killing contract terms

Unless Google can explain otherwise, that is, the current understanding is that Google is threatening legal content that follows its terms of service, as part of a contract that would protect illegal content that violates it.

That’s a low not even the likes of Napster or Megaupload or Pirate Bay ever reached.

Google might not have to block labels and artists from YouTube. If this remains their negotiating contract with indies, those musical entities would be well advised to abandon Google’s services of their own accord.

And if this is all wrong, and this isn’t what Google is offering – or if it is, and they have a change of heart – the company needs to quickly get out in front of the music community and public with better terms.

The post The Terrible, Horrible, No Good, Very Bad Google Music Contract? appeared first on Create Digital Music.