Thread by Cory Doctorow

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You might have seen @edsheeran's triumphant statement about his victory in a copyright lawsuit that alleged he'd copied elements of Sami Switch's "Oh Why" in his song "Shape Of You":


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ETA - If you'd like an unrolled version of this thread to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

pluralistic.net/2022/04/08/oh-why/ 2/
Sheeran's statement makes two critical points: first, that there are only so many ways of arranging English words and musical phrases, and 60,000 new songs being released to Spotify every day, there will inevitably be some coincidental duplications of words and melodies. 3/
That's an idea that's been in the air for a hell of a long time. @robinson_spider won a Hugo in 1983 for a short story called "Melancholy Elephants." 4/
It's a dialog between the widow of a legendary musician and a senator bent on extending copyright terms, which will result in every copyrightable element of every art-form being under copyright forever:

www.spiderrobinson.com/melancholyelephants.html 5/
It's also an idea the record industry fought like hell against. Take the *Bridgeport Music* case, which resulted in a judgment that a two-second sample, distorted beyond recognition, could still constitute a copyright violation:

en.wikipedia.org/wiki/Bridgeport_Music,_Inc._v._Dimension_Films 6/
The industry took the position that any borrowing of any kind should be controlled by the "original artist" - while undergoing waves of consolidation that ensured all the "original artists" were signed to one of three labels, in deals that acquired these ever-expanding rights. 7/
It was inevitable that this would come back to bite them in the ass, and it did. In 2015, the Marvin Gaye estate triumphed in a bizarre case over Pharrell Williams and Robin Thicke's song "Blurred Lines." 8/
The Gaye estate successfully argued that while the song didn't take any of Gaye's words or music, it took his *vibe*:

www.rollingstone.com/music/music-news/robin-thicke-pharrell-lose-multi-million-dollar-blurred-lines-l...

This opened a floodgate that saw lots of minor artists suing stars because there was some incidental, minor overlap. 9/
There was a $2.3m judgment against Katy Perry over an eight-note phrase that was similar to phrases in many other songs, including an obscure piece of Christian hiphop (Perry won on appeal).

pluralistic.net/2020/03/20/pluralistic-20-mar-2020/ 10/
These suits put the music industry in a bind, forcing them to argue for fair use and other limitations to copyright after decades of arguing against them. The results were often surreal. 11/
For example, Warner Chappell repeatedly sent manual copyright takedowns to Youtube to get a video removed on the grounds that it infringed Perry's copyright:

pluralistic.net/2020/03/05/warner-chappell-copyfraud/ 12/
The problem? The video didn't have any of Perry's music in it. Instead, it had the eight-note phrase that Perry was accused of copying, over which Warner Chappell spent millions on legal bills, insisting that it didn't sound anything like Perry's music. 13/
What's more, the Youtuber they repeatedly, manually, deliberately targeted was *agreeing with them* and had included the music to prove it sounded nothing like Perry's song. 14/
The music industry got exactly what it wished for: a world in which the customary borrowing and trading between musicians and their songs was prohibited, with incredibly stiff penalties. 15/
To the extent they'd even considered that this would interfere with normal musical activity, they'd assumed that it wouldn't interfere with *their* activities, since the three labels would be able to cross-license to one another, and between them, they'd own *everything*. 16/
But they failed to realize that the legal liability regimes they'd created would cut both ways, and that the peripheral acts and businesses - obscure Christian hiphop artists, say - would see the giant labels and their stars as irresistibly juicy targets. 17/
They were the proverbial dog that finally caught the bus, and then had no idea what to do with it.

Which brings me to Sheeran's other important point. 18/
He takes partial blame for the "Shape of You" suit, thanks to his decision to settle another baseless suit in 2017, over his song "Photograph." The suit sought $20m, and he judged that a the cost of quick payment was worth avoiding the hassle and risk of a suit. 19/
That, he says, opened the floodgates, as unscrupulous or deluded musicians decided to try their luck and see if they, too, could prise a settlement from him. 20/
But it's no accident that Sheeran settled. Modern copyright law was designed to encourage settlements, with high statutory damages (up to $150k/infringement) that makes the price of an unsuccessful defense certain financial ruin. 21/
The record industry used this to its advantage during the Napster wars, when it sued 19,000 children and extracted settlements from nearly every one of them, almost never having to go to court. 22/
Sheeran now says he's video-recording all of his songwriting sessions to prove he made up his tunes, just as Russian drivers record their trips with a dashcam in case a scammer jumps in front of their cars and claims they were maimed:

www.bbc.com/news/entertainment-arts-61026308 23/
But of course, even putting himself under 24/7 surveillance won't help Sheeran if he gets hit with a vibes suit like the Blurred Lines case. 24/
As @thepublicdomain and Jennifer Jenkins document in their seminal graphic novel, "THEFT: A History of Music," *all* music borrows from other music:

memex.craphound.com/2017/02/25/theft-a-history-of-music/

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And it always has (music scholars' pet name for Brahms's First Symphony is "Beethoven's Tenth Symphony").

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For decades, the legal program of the music industry has been to dismantle the process by which music is made, with the idea of rebuilding it within the walls of a very small number of very large companies.

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They planned to use their position to extract contractual concessions from creators and assert control over the changing currents of taste and distribution.

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In so doing, they created a set of potent legal weapons that can be wielded by people who have even fewer scruples than executives at giant record companies. Make no mistake: copyright trolls are a feature of copyright maximalism, not a bug.

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Image:
Kristain Baty (modified)
flickr.com/photos/50389211@N02/13285976654

CC BY-SA 2.0
creativecommons.org/licenses/by-sa/2.0/

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