September 24, 2018

A Land Without Music

Here’s a story I heard recently from an anonymous source. Based on the source’s identity and some of the details of the story, I believe it to be true. I have omitted some details here, to protect the source.

A well-known company, running a massive multi-player virtual world, was considering adding a new space to their world. Due to the nature of the space, characters there would probably want to make music. So the programmers created a set of virtual musical instruments, and tools for players to create their own instruments. The plan was that players would get virtual instruments and make music, for all of the reasons people make music in the real world.

But management nixed the idea, on advice from lawyers, because of concerns about copyright infringement. The problem was that players might use their virtual instruments to play copyrighted songs, and the game company might be sued for contributory or vicarious copyright infringement, for failing to prevent this.

Stop for a minute to think about this. All kinds of virtual objects exist in this virtual world, including a wide variety of weapons. But saxophones? Too risky. Presumably management would have approved a magic saxophone that was only capable of playing non-copyrighted songs, but the engineers had no idea how such a thing could be built.

To put this in context, recall that programmable virtual instruments are widely sold and used in the real world. They’re called synthesizers, and they’re really just computers that can be programmed to play any sequence of sounds, whether copyrighted or not. It’s not so easy to draw a principled line between real-world synthesizers and game-world instruments that makes one legal and the other illegal.

Perhaps the company was being overly cautious and the lawsuit risk was illusory. But I’m not so sure. This would hardly be the most farfetched copyright lawsuit we have seen.

Comments

  1. Private says:

    ” It’s not so easy to draw a principled line between real-world synthesizers and game-world instruments that makes one legal and the other illegal.”

    Although I think this over use of copyright protections is silly, the distinction between on line use and offline use is obvious: one is a guaranteed public performance, requiring the payment of royalties to the composer/publisher.

    The MM game company should have been able to negotiate an ASCAP/BMI license, unfortunately the game is available in any country and it is unclear how they would obtain compulsory licenses for all countries.

  2. Mark Gritter says:

    …the distinction between on line use and offline use is obvious: one is a guaranteed public performance, requiring the payment of royalties to the composer/publisher.

    This same reasoning would support banning the ‘chat’ feature on the theory that it could be used to put on public performance of copyrighted plays or books.

  3. This is a classic example of quick profit hurting the whole music industry in the long run (this is more than just the RIAA, my favorite music villain). Put it down under the same category as requiring summer camps to get public performance licenses before the campers can sing around the camp fire. How many camps decided to stop singing, and spend their time doing some other activity instead?

    These types of rules are intended to make people consumers of music, and discourage them from producing it. I’m sure an RIAA executive would be very happy to sell a great recording of “Happy Birthday”, as opposed to having people sing it themselves (for that matter, given my singing voice, my family may also prefer that 🙂 My point it that listening to a recording is much less involving than singing it yourself.

    I was reflecting back on the impact of the AHRA, and how it essentially killed off high-quality audio recording. I’ve always hung out with performers (music and theater), and the last 15 years have been very different than the before. In the 70’s, most amateur performers I knew recorded their performances on consumer audio gear. That does not happen now because consumer audio gear almost never has the ability to record (a prime assumption of the AHRA is that people consumer music, not produce it).

    When someone does want to record their own performances, they have to use professional equipment. While it is true that home studio gear has become much cheaper, the cost barrier is still much higher than before (back when every cassette deck came with microphone inputs). Many more people, who in the past would have regularly recorded their performances with their own equipment, can not justify the cost of professional gear (if they really need a recording, they use a studio). The legal policies, created at the behest of the music industry, create a barrier that keeps people from producing music themselves.

    So now that the music industry has killed off the amateur “competition”, it is all set to sell music to consumers. The problem is that music is no longer as important (as the past) to those same consumers. I see most of the creative energy that might have gone into music (both producing and consuming) instead going into areas with less barriers like digital photography, web pages, blogs, etc. Ironically movie making (film and animation) is area that has seen real growth, but the MPAA is now trying to setup the same types of barriers that the music industry has done (they probably see home movies less as a competitive threat, but they see great pay-per-view opportunities in the video area).

    You would expect the internet drive distribution to cause an explosion of new music, but the rate is smaller and slower because of music industry policies. What the music industry can’t see, or is perhaps just ignoring, is that those same policies are costing them sales now, and almost ensuring a downwards sales curve in the future.

    PS: I would not care about copyright reform so much, if it were not for the fact that I care about music (and movies). The industry incumbents are messing up the country, just for some very short term profits. If the industry succeeds in it’s DRM nirvana, their ultimate result will be driving away the customers they were attempting to get (movie quote: the more the empire tightens their grasp, the more systems will slip through their fingers).

  4. Private says:

    Mark wrote:”This same reasoning would support banning the ‘chat’ feature on the theory that it could be used to put on public performance of copyrighted plays or books.”

    Indeed it could. Fortunately there is no group of **AA storm troopers for printed copyright violations–yet.

    seann wrote:”When someone does want to record their own performances, they have to use professional equipment.”

    Pure balderdash. Today’s digital camcorders have way better quality audio recording than analog tape and better S/N ration than 1/4 reel to reel recorders. You don’t need pro equipment to make a simple recording. You can hook up your computer with free software and a basic mic and do good quality recording.

    ” consumer audio gear almost never has the ability to record ”

    This much is mostly true, but the advent of the CD-R really changed this equasion. Now music production and distribution is more democratic than ever. You don’t need to hire someone to make cassette dupes of your demo reel, you can now make pristine Red Book CDs on your home computer and print Professional Quality inserts on a $60 printer. You can also upload high quality samples to the web or p2p for massive distribution of your songs. Your thesis is outdated.

  5. Brian Srivastava says:

    Thunderheart (that’s his board name I can’t recall his real name) made a developers post to this effect about star wars galaxies on their forums. Its been well debated by their entertainer/musician community about all of this. There are apparently a plethora of legal issues that SOE/Lucasarts didn’t want to navigate.

    One of the other questions that arose is somewhat more subtle and more interesting. In a virtual world SOE, EA, blizzard etc.. all claim ownership of EVERYTHING. But if you make original music in game, make an in game recording of it, who owns the license? And what if you aren’t a US citizen, who’s laws apply and all of that. One isn’t supposed to be able to make a recording of the game music as far as I know, so if you do who owns it, what about if you put a microphone in front of your computer speakers?

    As it is (I’m not an expert on music so apologies in advance), you can make an arrangement of in game music(some of which you’ve heard in the movies), and who then owns it?

  6. Now, if the game had been implemented in an open, decentralized protocol by non-profit developers, the possibility of getting sued would barely have crossed their minds. Given the expense of copyright lawsuits, they are necessarily motivated by profit. A suit against non=profit developers creating a decentralized protocol would not result in a damage settlement, a license settlement, nor a would it shut down the network.

    Sometimes it seems that profiteers can only devastate other profiteers…

  7. Donald Jessop says:

    I don’t know much about American copyright law, but I was wondering: what if you wrote a song that had a single note, could you copyright it? If you could, could you then copyright a number of different songs, each one compsed with a single note? Then, theoretically, couldn’t you charge everyone in the world with copyright infringement?

  8. There’s something I don’t get though when it comes to the whole “public perfomance” issue of all this.

    Musicians (myself being one) play copyrighted songs publicly all the time, and don’t ask for permission. It always seems like (at least, this is my understanding) you’re fine as long as you don’t record and sell it.

    I thought it was only a copyright issue if it’s recorded, or the EXACT recording was played. But playing it on another instrument (this being a virtual one) in a “public space?” How is that any different from me playing a copyrighted song on my guitar in a coffee shop?

  9. Copyright law bans “public performance” of a work without the permission of the copyright holder, with some exceptions, such as fair use. If you perform a work publicly, and none of the exceptions apply, then somebody had better be paying for a license. If you perform in a venue, the venue might be paying.

  10. We all aware of the copy-right drama happening every where.But, this case is really shocking.After going thru this post, i thought many times but i was really unable to get a solution out of the problem.

    Then what the engineers would do? Virtual Saxophone!! Hmm it won’t be soo cool either.

    They had no way out.It is the time to draw a specific line between this real and virtual world laws.Donald Jessop may be true as he said none would be left on this earth, iof they apply copy right like this.

    There should be some change.