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Comment by azinman2 | Hacker News Reader

You’re acting like the equivalent of patent trolls were trying to shake him down. But that’s not the case: it was other singer-songwriters. And if it really is a coincidence it’s quite the coincidence: https://youtu.be/8OrT52ZToUk

(Ignore the title of that video and just listen/watch the content).

Now there are obviously many common chord progressions in pop music, but that is a bit different than a much longer melody. Enough so that the courts agreed. You also have to wonder if the success of that melody was already imprinted on his subconscious.

What I don’t know is if him having original thought versus attempting to copy matters. If I publish a poem, and then you try to publish the same words even if you didn’t intend it to be a copy, then you’re still committing a copyright violation regardless of intent.

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The two passages are not, in my opinion, similar enough to insinuate copyright infringement. The only similarities are the general melodic contour and some (not all) of the chords. Even though the overall shape of the melodies is similar, they do have many differences, to the point where I would not say it is 'copied'. The chord progression under them is different, but most clearly the groove and delivery are not at all alike between the two pieces. Even though both Shape of You and No Scrubs are hit songs, I had never noticed the similarity until this. If this standard was enough to find copyright infringement, you could nail every third song on the charts somehow.

I’m a musician, composer, and occasional songwriter. I agree with this. I’d testify in court that this is not plagiarism or infringement in my opinion. Unfortunately people are suggestible. Tell them the melodies are the same, then play them, and people hear them as more similar than they are. It reminds me of that illusion where you play muttered speech with a caption and people “hear” the words in the caption.

> And if it really is a coincidence it’s quite the coincidence: > https://youtu.be/8OrT52ZToUk

Obviously these things are subjective, but I heard no resemblance at all. in that video. Until the second song played I had no idea what it was going to be, even though it was a hit when I was young and I know it well.

It's in a different key or something, and has different instrumentation, so it sounds different, despite the basic melody.

If you watch the video you'll see the two song samples in the latter half are in the same key and instrument.

So we have a suit over two things that sound different because they sound similar? Hmm.

> What I don’t know is if him having original thought versus attempting to copy matters. If I publish a poem, and then you try to publish the same words even if you didn’t intend it to be a copy, then you’re still committing a copyright violation regardless of intent.

That's the case for, e.g., patents, but it is explicitly not how copyright works. Clean-room reproductions are valid defenses.

I'm unsure "clean-room defense" can apply to a melody from a top 10 song.

The court just has to weigh all the evidence. A lot of people have heard top-10 songs, so it would be hard to prove true independence. At an extreme though, if you could prove that somebody was perfectly isolated (e.g., if they had video evidence of not being exposed since that top-10 song was produced), a clean-room implementation from that individual would satisfy copyright law (mostly, give or take the as-of-yet mostly legally untouched minefield of deep-fakes). The only real question is where courts would draw a line between that kind of conclusive evidence and some random Joe pinky-swearing they produced the latest Taylor Swift hit in their garage and that it's accidentally kind of similar.

> Clean-room reproductions are valid defenses

No such defense exists. If you tried making your own Mickey Mouse cartoon, Disney would pursue a copyright infringement case against you and would almost certainly prevail. (There are some fair-use defenses permitted like parody, but mere “clean room reproduction” is not one of them.)

(IAAL but this is not legal advice. Consult a licensed attorney if you want legal advice - most definitely NOT HN.)

Which isn't to say that clean-room isn't a valid defense, but rather that it's unlikely that somebody would (or could) independently produce something very similar to Mickey Mouse -- especially since nearly everyone had seen Mickey Mouse, so such an implementation would probably be tainted. If you can prove that you independently created that idea then it's still a valid _copyright_ defense (not a lawyer, yada yada).

There's a lot of necessary legal analysis missing here, and independent creation of an idea plays no part in it. Copyright protects creative expressions (i.e., artistic works), not mere ideas.

I think what you’re trying to say is that independent creation would be a basis to deny a prima facie copyright infringement claim: there is no infringement because no copy has occurred. But that’s a different thing than an affirmative defense. A defense is something you raise after admitting the truth of the claim: you’re basically saying, “yes, I did it, but I’m justified because XYZ.”

That seems really far fetched. The original versions sound nothing alike to me. They don't have the same vibe at all either and don't give the same emotion.

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