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Comment by Robin_Message | Hacker News Reader

I am not a lawyer, but as I understand copyright law there seem to be to be two problems with this:

- a copyrightable work must include some human creativity. It seems to me that an enumeration of possibilities might be creative, but there is no way an individual element of that enumeration can be considered creative.

- Copyright depends on copying. If you release a song with a catchy melody stolen from another song, then you infringed its copyright, regardless of if there is an licensable version of that melody that you could have copied. What matters is which one you copied, not the existence of alternate copies.

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> Copyright depends on copying

This is a response to the Flame v Katy Perry lawsuit, where a youtube video with 100,000 views was deemed sufficient popularity for the court to assume copying without proof.

The element that Katy Perry was found to have illegally copied is a 4-note descending line with equal spacing between the notes. In both "Joyful Noise" and "Dark Horse" the pattern was probably generated by a producer pressing the "arp" button on a minor chord in a DAW. Neither of them actually plotted out each of the notes with particular purpose. But the Court still said that the 4-note descending pattern is original and creative enough, the fact that it was composed by software notwithstanding, and illegal to reproduce.

Tangentially relevant is Adam Neely's take on that lawsuit: https://youtu.be/0ytoUuO-qvg.

To be fair, this program is a stupid response to a stupid problem. Even if that muddied the waters for a year or two, that would just be a patch, not a fix.

The fix is political. Call for copyright reforms.

> Copyright depends on copying

Copyright claims have been won by arguing the song was so widely available that it’s unreasonable to assume the defendant did not have access to it, which is why they’re trying to spread access to this as far as possible

Those are precisely the objections I'd raised with the Damien Rhiel (submitted via email, no response).

Additionally there's the problem of releasing the works to the public domain. As discussed a couple of weeks ago when the 2016 billion-dollar infringement lawsuit against Getty Images was attempted ... and thrown out of court ... the act of putting works in the public domain also extinguishes, in the court's eyes, the rights of the author to sue for any claims including moral claims of authorship.

See: https://news.ycombinator.com/item?id=22340325

So: clever stunt, but legally impotent, both by law and the self-neutering actions of the actors here.

Adam Neely's video (interviewing Rhiel and collaborator Noah Rubin) covers many points of copyright, though not the originality, authorship, or PD angles. (Posted elsewhere in thread, echoing here.)

https://youtube.com/watch?v=sfXn_ecH5Rw

I think the aim is not to claim that other pieces violate this collection's copyright, but rather to invalidate the frivolous claims that such melody sequences are copyrighted to begin with.

Either the courts decide they are not, in which case the creators will be happy.

Or they are copyrightable and therefore this collection, even if it is in the public domain, is a prior art that invalidates any claim that a newly used melody is really new/copyrightable.

Without the capacity to litigate, that ability is sharply reduced.

Free software achieved its attack on proprietary software not by rejecting copyright claims but by turning them on themselves.

It's a bit like the Tesla Valve, a one-way passive check valve with no moving parts:

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

> What matters is which one you copied, not the existence of alternate copies.

Not a lawyer either, but "I came up with this myself" is the standard defense of the artists, with mixed success.

> It seems to me that an enumeration of possibilities might be creative, but there is no way an individual element of that enumeration can be considered creative.

What if the author was thinking about generating a specific, original melody when he hit "run"? He just wanted that melody and didn't care about the rest, but he was lazy and it was easier to find his melody among the rest of generated melodies instead of modifying the source code.

Can you deny that he created that melody?

I agree, with the small caveat:

> If you release a song with a catchy melody stolen from another song...

Copied. Not stolen. Copied.

Of course I know what you meant, but it's sad that this phrasing has entered the language. In all the tensions around limits of IP protection, this one was probably the most effective trick media companies pulled. Equating copyright violation with theft (and, through implication, their moral weights), even though one has nothing to do with the other.

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