April 18, 2021

Attempt To Put Every Musical Melody Into The Public Domain Demonstrates Craziness Of Modern Copyright

The fact is that many of the copyright lawsuits we see coming out of the music industry mostly revolve around copyright claims on musical melodies. In many of these cases, artists find themselves on the losing end of judges and juries all while claiming that there was no intention to infringe, with the supposedly offending material instead being developed as essentially an independent creation that happened to be similar to previous works. The Blurred Lines case went that way, as has the Dark Horse case. The problem with this is that music is somewhat akin to mathematics, in that within a given octave or set of octaves, there are a finite number of musical combinations between notes that can be made. Sure, that number of combinations is large — tens of billions, actually — but the finite number of resources exists nonetheless.

Given that fact, affording copyright protection to melodies like this is absurd. The entire point of copyright law is to promote the creation of new and original works. If copyright law itself is to be applied such that on a long enough timeline no further works can be created, assuming artists can create music fast enough for all musical combinations to be copyrighted, that is the literal antithesis of the point of the law.

Damien Riehl has thought likewise. Riehl is a unique combination of musician, programmer and lawyer. And he thinks these copyright lawsuits in the music industry are stupid. So, he is attempting to do something rather unique about them.

One of the reasons why it’s so tough to defend a copyright lawsuit is because the court now considers a melody just a sequence of pitches, so Damien Riehl and Noah Rubin developed a program that recorded every possible melody (all 68.7 billion of them) via MIDI to a hard drive, but not for the reasons that you might think.

His idea was to commit this vast library of melodies to a hard drive (along with programmer friend and musician Noah Rubin), which automatically bestows copyright on all of them when as soon as they’ve on a medium.

If ever there were a story of how antiquated copyright law is made to look silly in the face of new and emerging technologies, this certainly must be it. To be able to mathematically output all potential melodies to a medium and thereby technically gain copyrights over those that weren’t already copyrighted elsewhere, is actually quite funny. But if you were worried that the goal was to lock up all of these melodies and make zillions by licensing them out, that’s not what Riehl is after.

This might initially seem sinister but the two then put the melodies into the public domain. In fact, anyone can download the works and the program the two used in order to take the process further at allthemusic.info.

Is this an end to copyright lawsuits over musical melodies? No, almost certainly not. What will eventually likely happen will be for plaintiffs to argue in court, when presented with this as a defense, that Riehl’s creation wasn’t “creative” or “artistic” or some other such qualifier. Now, that won’t really fit in with the law and will require courts to interpret copyright law to allow cases to move forward. But that’s probably what will happen if Riehl’s work is raised as a defense. Courts will try to interpret their way out of what is actually a fairly straightforward disqualifier for all melody copyright suits for at least Riehl’s life plus seventy years.

But, that this probably won’t achieve what Riehl wants doesn’t change the fact that this very much shows how antiquated modern copyright law has become.
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