# Illegal to create VST instrument from a drum machine and sell it?



## Andrew Goodwin (Mar 15, 2016)

deleted


----------



## EvilDragon (Mar 15, 2016)

If you get express permission from the manufacturer, you can sell.


----------



## JohnG (Mar 15, 2016)

in writing


----------



## Astronaut FX (Mar 15, 2016)

Wouldn't it depend on the drum machine? For example, the Vermona DRM1 has a huge range of sounds that can be obtained from it. If I use it to generate the sounds, and not refer to it by name in the marketing of the sample library, what agreement have I violated? How is that different than using a synths to dial in custom patches?


----------



## JohnG (Mar 15, 2016)

dude -- there is no point arguing with us; get facts on your side. Check the terms of use and if it _doesn't_ say "dude you can't steal our sounds and sell them as your own" then I guess you can do what you are proposing.

Most products for a long time now have been very clear that you can't do what you are proposing. You can try convincing your v.i. control buddies all you want, but we're not the ones who are going to sue you for damages and obtain a restraining order.


----------



## Astronaut FX (Mar 15, 2016)

Dude, I just asked a clarifying question. No one is arguing perhaps except you. 

It's been my understanding for a very long time, that many of the sample libraries we purchase, have, as there source material, sounds that are generated by synthesizers. Some drum machines on the market are more like synthesizers than others. Perhaps I've been buying flatulence libraries all along and have not been aware of it.


----------



## JohnG (Mar 15, 2016)

"Tone Deaf" appears to be a good name for you. Read any EULA.


----------



## RiffWraith (Mar 15, 2016)

EvilDragon said:


> If you get express permission from the manufacturer, you can sell.



That ^, and/or if the EULA allows for what you want to do.



Andrew Goodwin said:


> If not can I provide it as a free download and ask for donations?



That's not exactly "free", now is it?


----------



## Astronaut FX (Mar 15, 2016)

John, I really don't understand why you need to feel the need to be a prick toward me. I'm trying to have a conversation about this to understand what the rules are. I just completed a pretty exhaustive search for a EULA for the Vermona DRM1 I just mentioned, and found nothing that speaks to whether or not I can use that piece of hardware to create sample libraries. I looked through the user manual, which is the only documentation that was included in the box, and it is silent on the issue. I scoured their website...nothing.

To be clear, I'm not talking about taking drum machine "X," sampling its signature sounds, leaving them as they are, and packaging it up as the "Drum Machine X" sample library. I'm very clear on understanding that this would be a problem. I'm talking about using the hardware, tweaking its parameters, creating my own sounds using the hardware, recording samples, manipulating them, and creating my own sample library, and not referring to the hardware model or manufacture in any way. That is prohibited? (Again, not arguing, asking.)

As another example, if I take my modular synth system, using several modules by several manufactures, and create unique sounds, am I understanding you that I need to get express permission from each of those manufactures before using any of them to create sample libraries for sale? How on earth would they be recognizable?

RiffWraith - Since you've weighed in, I have your Euphoria sample library. Are there not samples/patches within that product that were created through the use of hardware sytnthesizers? Did you get express permission from the manufactures?


----------



## germancomponist (Mar 15, 2016)

I have very good ears and I have identified many stolen samples in these new hybrid Cinema libraries! 
Mixing it together can not fool my ears!


----------



## Mike Greene (Mar 15, 2016)

I think Tone Deaf is talking about drum sounds that are synth generated, like a Roland TR-808. I'm pretty sure that's legal to sample. Just like sampling a Mini-Moog.

The name and pictures are another story, though, since they're probably trademarked.

<EDIT> I did a quick Google check on the Vermona DRM1, and they refer to it as a "true analog drum synthesizer." So that would be legal. (Although, again, you can't use the name or pictures.)

<EDIT #2> None of what I'm saying is legal advice. My official "legal advice" is don't do anything!


----------



## Astronaut FX (Mar 15, 2016)

Yes, Mike. Thank you for actually listening to me.


----------



## RiffWraith (Mar 15, 2016)

Tone Deaf said:


> RiffWraith - Since you've weighed in, I have your Euphoria sample library. Are there not samples/patches within that product that were created through the use of hardware sytnthesizers?



No there are not.

Cheers.


----------



## owenave (Mar 15, 2016)

Andrew Goodwin said:


> hey guys thanks for the responses, yeah I kinda feared that might be the case, it makes sense. the manual doesn't mention a single thing about EULA. I had seen others sampling machines and providing them for free download, that's why I even questioned it was legal. I'd rather give it away then let it sit there.
> 
> 
> *Anyone know if I can give it away completely free? (No donations)*
> ...


Andrew I am not sure that giving it away would protect you. Just like if someone copied a song did a remix version then gave it away, I don't think that would be legal. Again like others just sharing ideas I am not an attorney. It would be good to get some clarification from an attorney if we have one on the site. And good vibes to all.


----------



## Andreas Moisa (Mar 16, 2016)

RiffWraith said:


> No there are not.
> 
> Cheers.



So it's all soft synths? And probably your own recordings of stuff?


----------



## RiffWraith (Mar 16, 2016)

Andreas Moisa said:


> So it's all soft synths? And probably your own recordings of stuff?



Basically, yes. The lib is comprised of all original organic recordings (drums, guitars, bass, piano, and other), and yes - soft synths that do not have any restrictions. Yes, I checked before hand.


----------



## tcollins (Mar 16, 2016)

Mike Greene said:


> I think Tone Deaf is talking about drum sounds that are synth generated, like a Roland TR-808. I'm pretty sure that's legal to sample. Just like sampling a Mini-Moog.
> 
> The name and pictures are another story, though, since they're probably trademarked.
> 
> ...



This has always been my understanding as well. You cannot sample a sample (like a sound from a rompler or a sample library) and resell it, but you can sample a synth generated sound. I once had a conversation with a guy at the US Copyright Office when he called me concerning my pending copyright for a synth-based sample library. They seemed concerned about sampling the factory presets, even on an analog synth. They asked me in detail about how the library was created. When I assured them that I had programmed the patches from scratch, they were satisfied.


----------



## Astronaut FX (Mar 17, 2016)

Thanks for sharing this Tracy. This makes sense, which is why earlier, I had suggested that it depended on the drum machine (since the OP did not provide those details).

I think it's also worth noting, that in this thread it's been suggested that the EULA be consulted. I think perhaps some of us have been using samples for so long that we've forgotten what those letters mean. End user *license* agreement. According to my research, EULA is specific to software and there often is no EULA with a hardware instrument. I've taken a look at the literature that came with several hardware synths/drum machines that I own, and found none. Which stands to reason. I own that hardware, it hasn't been licensed to me. No different than owning a Les Paul or a piano. 

Now if I create a sample library with hardware, and use the name of the hardware or company in the name of my library, or in the patch names without approval, that could be trouble because those names are trademarked.

I can also see using factory presets just as they are, as potentially problematic.

But if you use a hardware instrument, creating sounds from scratch, and using those sounds in a sample library for sale, with no mention of the brand/model in either the product name or patch names, I'm not convinced how this would represent a violation.


----------



## babylonwaves (Mar 17, 2016)

Andrew - 
Roland for instance does not allow you to sample their synthesizer presets and use those samples in a commercial product. They consider this some sort of re-distribution. You will always be able to make your own sounds, sample and distribute those. Unless you sample raw waveforms or sounds which cannot be sonically modified. And this might be true for certain drum machines. The other issue results from brand names. You cannot use the product names unless you cleared that first. 
An EULA (end user license agreement) can be a aspect of a printed manual, it is not necessary limited to software although I haven't seen this expression outside the software world. The only issue with a printed license agreement is that one can argue that one has never red it and that's why a violation didn't happen in a nonnegligent way. That's why in software you need to hit the agree (to terms) button before you install the software.
A picture should be okay unless you haven't taken it yourself.


----------



## Mike Greene (Mar 17, 2016)

babylonwaves said:


> A picture should be okay unless you haven't taken it yourself.


I think you're right, although I'll add one nit-picky exception: If there's a trademarked logo on the instrument, then that would be a violation. That's why on low budget really shows (where they don't have a staff to coordinate licenses, or better yet, product endorsements), they always blur out the Apple logo on computers, or the Budweiser or Van Halen logo on t-shirts.


----------



## Mike Greene (Mar 17, 2016)

A little bit of a tangent, so take this for the academic musing that it is, but I think it could be argued that Roland could sue all record companies who have sold CDs with songs that used the D50. The D50 contains recordings (samples) which Eric Persing (the guy who made the patches) has told us are copyrighted, right? So technically, we need permission to use those recordings/samples in our own recordings. That's basic copyright law.

In fact, that's why sample libraries have EULA's. Without an EULA, the user does not have permission to use the sounds in recordings. At all. The purpose of an EULA is to _grant_ that permission, as well as to define the bounds of where that permission is (and is not) granted.

Well, I have my D50 manual right here, and I don't see any mention of Roland granting me the right to use these sounds in my own recordings. Lots of warnings about electrocuting myself if I lick the circuit board, but no mention of any licenses being granted. So . . . all of us guys who produced records in the 80's are screwed!

Of course, a lawsuit would never stand up in court, because the D50 is sold with an obvious "intended use," which negates the need for a license to be granted. But I still find it amusing to think about. (No wonder I didn't get laid much in high school . . . )


----------



## Lindon (Mar 18, 2016)

..and so Mike hits the problem nail on the head, for *all* hardware manufacturers.... As a hardware manufacturer(drum machine, synth, ROM wave-table based or not) I want my customers to be able to use my product both live and on record. So I'm going to either:

1. not have any kind of restriction on how the sounds are used
2. restrict how the sounds are used to make a "recording"

..and its "recording" here that's the problem, any EULA gets tied in knots defining acceptable "recording" - in some song recorded at Ocean Way vs in my bedroom? Where the "recording" includes other instrument layered with the hardware product?(but wait a minute - what about intros where the "song" requires the sound of the 808 snare alone? eek!), and the recording is of some defined length?(but what's the minimum ...30 seconds? But wait a minute - What about TV ads and stings etc. grr)

Its impossible to define clearly, and thus impossible to enforce. Which is why searching through your hardware manual you are unlikely to find anything about how you can and cant use the contained sounds. 

Here's the reality(I think): Even a trivial change to the sound - the OP could for example run their samples through some tape emulating VST, (in fact the well known, and very good, GoldBaby sample company does a more value added version of just that!) - and it would be different "enough" to make enforcement very difficult to apply. Clearly the original owner of the samples could watermark the samples (there are a number of technologies that claim to survive editing, re-sampling, and effect application), but none of them do this - I know of no hardware manufacturer who has watermarked their samples (let me know if you know different). 

Of course this is equally true for us Software ROMpler makers, we can include a EULA that says no reselling of the contained(and much more accessible) samples. But if the end user re-samples them, retunes them (even slightly) and applies some tape and tube effects(for example) then its nearly impossible to PROVE "they are my samples" without the aforementioned (costly) watermarking.

check http://www.goldbaby.co.nz/ and see him even use (partial) hardware screen shots.

In no way do I want this to be seen as a criticism of GoldBaby, who in my opinion add considerable useful value to the sample libraries they provide, and I heartily recommend you purchase them, or at least try the free downloads. But its a good example of where reality lies. So to the OP:

Add value, don't just re-sample.

Your mileage may vary


----------



## Astronaut FX (Mar 18, 2016)

Great points Lindon. I still believe a key distinction is the ownership aspect. When we "buy" sample libraries, we aren't actually buying anything. We don't take ownership of anything. We are paying for a license to use those samples, in accordance with the EULA. The developer still owns the samples, and therefore maintains full control as to how those samples can be used. 

With physical hardware instruments, we are taking ownership of the physical instrument. I'm not licensing a Gibson Les Paul, I own it. I'm not licensing that Yamaha grand piano, I own it. I'm not licensing that Moog Slim Phatty, I own it.

Gibson, Yamaha, and Moog still own their names, and I cannot use those names in any unauthorized manner. But by owning the instruments, they are very limited in restricting how I can use those instruments that I now own.


----------



## Lindon (Mar 18, 2016)

Actually I think that's not quite right... hardware or software makes no difference. If I provide an "item" to you and assure that you agree to an accompanying license, then you don't own it, you license it. Possession doesn't mean anything in this case. This approach to licensing not selling outright grew out of the early PC software industry, and was essentially an accounting strategy for the developer to write off the entire value of their software base, so its very rare as an approach in the hardware community, but it would be possible for Gibson(to use your example) to sell you a life-long license to use the Les Paul Custom, for lets say $1500 an then provide the physical item for free....which is the model used in software. It'd be silly I grant you, but possible to do.


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> With physical hardware instruments, we are taking ownership of the physical instrument.



But are you taking ownership of the sounds contained therein?


----------



## Astronaut FX (Mar 18, 2016)

RiffWraith said:


> But are you taking ownership of the sounds contained therein?


I think that may be the exact grey area. 

If we're talking about a hardware instrument with very well defined presets with very little ability for tweaking within the instrument itself, then perhaps sampling them as they are may be a violation. 

If we're talking about a hardware instrument with a huge range of tweakable parameters, I think the manufacturer would be hard pressed to claim legal rights to every possible combination of parameters, and would be even harder pressed to prove it.


----------



## Astronaut FX (Mar 18, 2016)

Lindon said:


> Actually I think that's not quite right... hardware or software makes no difference. If I provide an "item" to you and assure that you agree to an accompanying license, then you don't own it, you license it. Possession doesn't mean anything in this case. This approach to licensing not selling outright grew out of the early PC software industry, and was essentially an accounting strategy for the developer to write off the entire value of their software base, so its very rare as an approach in the hardware community, but it would be possible for Gibson(to use your example) to sell you a life-long license to use the Les Paul Custom, for lets say $1500 an then provide the physical item for free....which is the model used in software. It'd be silly I grant you, but possible to do.



Agree. But again, just looking through the provided literature provided with several hardware instruments that I own, I've found not a single EULA. Which makes sense. I did not license the use of the item, I purchased them.


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> If we're talking about a hardware instrument with a huge range of tweakable parameters, I think the manufacturer would be hard pressed to claim legal rights to every possible combination of parameters, and would be even harder pressed to prove it.



You are probably right on the 'prove it' point; if you tweak a sound a great deal, to where it has almost no resemblance to the original, how on earth is the manufacturer going to prove you used their sound to get yours? Even if the end result is similar in some way, it is a near impossible task. Unless you specifically say you used x-sampler or synth.

But in terms of legality, here is the EULA from Roland's hardware synth, the JV-1080:

http://www.rolandus.com/support/by_product/jv-1080/support_documents/1531

_The foregoing license gives you limited rights to use the Roland Product. You do not become the owner of.... the Roland Product....

You may not decompile, reverse engineer, disassemble, or otherwise reduce the Roland Software to a human-perceivable form. You may not modify, sell, rent, transfer, resell for profit, distribute or create derivative works based upon the Roland Product or any part thereof._

The patch list says the same thing as the performance list.

I would imagine that other companies that make similar products have what amounts to the same EULA.

Cheers.


----------



## Astronaut FX (Mar 18, 2016)

RiffWraith said:


> You are probably right on the 'prove it' point; if you tweak a sound a great deal, to where it has almost no resemblance to the original, how on earth is the manufacturer going to prove you used their sound to get yours? Even if the end result is similar in some way, it is a near impossible task. Unless you specifically say you used x-sampler or synth.
> 
> But in terms of legality, here is the EULA from Roland's hardware synth, the JV-1080:
> 
> ...




Good example. I too have visited Roland's website, and they provide a similar agreement with each download, including user manual documents. I believe the argument could be made that the agreement relates to the downloaded document, not necessarily the device itself. As someone previously noted, if I buy a Roland instrument, and never visit the site, and never read the manual, have I agreed to any license agreement?

A good attorney could very easily argue that the EULA you referred to is for the download of the manual, not the device itself. For example, if you read further in yah agreement, it states,

"The Roland Product is provided to you free of charge, and on an “AS IS” basis, without any technical support or warranty of any kind from Roland including, without limitation, a warranty of merchantability, fitness for a particular purpose and non-infringement."

How many Roland products have you received free of charge? Me? None. This agreement refers to the document you're downloading.


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> This agreement refers to the document you're downloading.



No - if you read the EULA, it clearly says the terms apply to the sw.

First it says:

_“Roland Product” means the Roland Software and any related documentation, models and multimedia content (such as sound files or other data),
_
So any time _“Roland Product” _is referred to, it means sw, docs, models and mult. content.

Then it says:

_You may not decompile, reverse engineer, disassemble, or otherwise reduce the Roland Software
_
That means just what it says; it is not saying you can't do anything with the docs; it is saying you can't do anything with the device itself. It's right there in b&w.

Cheers.


----------



## Astronaut FX (Mar 18, 2016)

To elaborate, I bought one of the Roland Boutique JU-06 when it first came out. I've just taken a second look at all of the documentation on and inside the box. No EULA type language whatsoever. Which stands to reason. All of my research points to EULA applying to software. But if I go to Roland's website, and attempt to download a PDF copy of the user manual, I do have to click to agree to the verbiage we've both been quoting. I believe that's because the agreement pertains to the software (PDF manual) that I'm attempting to download. Otherwise, if you buy a JU-06, and never visit the website, at what point are you agreeing to this EULA that you've never seen? How can such an agreement be enforced?


Let's look at the full paragraph of the definitions:

1. Definitions:
(a) “Roland” means Roland Corporation U.S., a corporation with offices located at 5100 S. Eastern Avenue, Los Angeles, California, 90040-2938, United States. (b) “*Roland Software*” means the software program(s)* found on this Website and downloaded therefrom*, and all related updates supplied by Roland. (c) “*Roland Product*” means the Roland Software and any related documentation, models and multimedia content (such as sound files or other data), and all related updates supplied by Roland.

Section (b) makes no mention of the hardware itself.
Section (c) makes no mention of the hardware itself.

From a "play it safe" standpoint, I think it makes sense to avoid sampling Roland factory presets and presenting them in a sample library. But I'm not seeing anything in the independent product documentation that prevents me from taking the JU-06 that I purchased outright, manipulating my own patches and use them in any particular manner (provided I don't use Roland's trademarked name or product name).

Here's the thing, the courts spend huge chunks of time determining the legality of such documents. Just because Company A drafts an agreement, and Customer B agrees to it, if there becomes a dispute, the court determines (a) was the agreement legal to begin with, and (b) if so, did either party violate it. And from what I do know about the law, when it comes to verbiage within an agreement or contract, if it is determined that the verbiage is unclear, the benefit of the doubt is typically given to the customer.


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> Section (c) makes no mention of the hardware itself.



Yes it does. _It's right there._


----------



## RiffWraith (Mar 18, 2016)

Besides, it DOES make mention of "sound files or other data" - which is part of the hw.

Bottom line is, the EULA states that you can not use any Roland product to make a new, commercial saleable sample library.

Cheers.


----------



## Astronaut FX (Mar 18, 2016)

EULA =end user license *agreement*

So how do you answer the following? If there is no EULA in the package with my JU-06, how is there an agreement? Posting this on their website, where it is only viewable if you go looking for it, in my mind doesn't make it an agreement.


----------



## Mike Greene (Mar 18, 2016)

Lindon said:


> Actually I think that's not quite right... hardware or software makes no difference. If I provide an "item" to you and assure that you agree to an accompanying license, then you don't own it, you license it. Possession doesn't mean anything in this case. This approach to licensing not selling outright grew out of the early PC software industry, and was essentially an accounting strategy for the developer to write off the entire value of their software base, so its very rare as an approach in the hardware community, but it would be possible for Gibson(to use your example) to sell you a life-long license to use the Les Paul Custom, for lets say $1500 an then provide the physical item for free....which is the model used in software. It'd be silly I grant you, but possible to do.


Along similar lines, Dumble amps are certainly considered hardware and were "sold" to buyers, but those buyers had to agree (in writing) to certain restrictions, including that they wouldn't try to look at the circuit design.


----------



## Mike Greene (Mar 18, 2016)

RiffWraith said:


> But in terms of legality, here is the EULA from Roland's hardware synth, the JV-1080:
> http://www.rolandus.com/support/by_product/jv-1080/support_documents/1531


I happen to have a JV-1080 (and a JV-2080 and a JV-8080 . . . damn, I have way too many synths!) and I'm checking the manual right now and there is no such clause. They do have a copyright notice about the demo songs that were included, and the usual _"don't electrocute yourself!"_ warnings, but nothing about not copying sounds or reverse-engineering or anything like that. They undoubtedly added all that stuff in the web link much later, so as far as "agreements" go, I never _agreed_ to nuthin'.

But my contention is that it doesn't matter, at least not for a synth with samples involved. If there are sampled waveforms included in the instrument, then copyright law already forbids us from copying them, whether we "agreed" or not. So whether Roland explicitly forbids it or not, I'm not allowed to sample the 1080.

With that said, I'm guessing that there is no such protection for the JU-06 since, if it's true to the Juno 106 (would it be bragging if I said I also have a Juno 106? Okay, then I won't say it...), then it uses true oscillators, not samples. Sure, Roland might *claim* ownership of the sound a JU-60 makes, but as Tone Deaf said, he never _agreed_ to anything, so Roland doesn't have a leg to stand on, since basic oscillators can't be copyrighted. (Okay, maybe the design/schematic can be, but not the output.)

The distinction is whether the synth or drum machine is using *samples*. If it is, then copyright law kicks in, so the manufacturer is holding all the cards and can make whatever rules he wants, even if there's no EULA. (Remember, if there's no EULA, then the law says *no* copying is allowed.) If there are no samples, then the manufacturer has to get an actual agreement from the user regarding any restrictions.


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> So how do you answer the following? If there is no EULA in the package with my JU-06, how is there an agreement? Posting this on their website, where it is only viewable if you go looking for it, in my mind doesn't make it an agreement.



So how do you respond to the sample lib devs who do not distribute an EULA, saying "hey - it's on our website!"?

I buy sample lib, I am not directed to EULA prior to checking out, and there is no EULA in the zip files I d/l - I agreed to nothing. So there is no agreement, right? Wrong.


----------



## RiffWraith (Mar 18, 2016)

Mike Greene said:


> I happen to have a JV-1080 (and a JV-2080 and a JV-8080 . . . damn, I have way too many synths!) and I'm checking the manual right now and there is no such clause. They do have a copyright notice about the demo songs that were included, and the usual _"don't electrocute yourself!"_ warnings, but nothing about not copying sounds or reverse-engineering or anything like that. They undoubtedly added all that stuff in the web link much later....



Right. When the 1080 was introduced (and I am just using the 1080 as one ex), there was no internet. Well there was, but nothing like it is now; there were only a couple hundred websites, I think. At the time, they probably saw no need to make the EULA as extensive as it is now. But, as it is their IP, they get to amend the EULA.

So, maybe, if you had created a sample lib from a 1080 in '96, and resold it - that might technically be legal. "Hey - the EULA didn't say I couldn't do that!" But the EULA says it now, and that's what people have to go by.

Cheers.


----------



## JohnG (Mar 18, 2016)

good grief! It's common law. You can't take someone's trademarks and someone's "stuff," whether it's images, sounds etc. and start selling it as your own without their agreement.


----------



## Astronaut FX (Mar 18, 2016)

It depends on what is covered by the term "their stuff." Yes, their company name, their product name, arguably their raw factory presets, but the output (sounds) created by manipulating the parameters of the hardware that I now own, I'd suggest that is not their stuff. It's mine. My creation made using the instrument/tool that I purchased. 

Jeffrey, do you really think it's kosher for Roland to change their EULA years after the fact? Agreement by definition means that two parties agree to the terms. Once the deal is done, neither can legally unilaterally changes the terms of the agreement. That, is common law.


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> Jeffrey, do you really think it's kosher for Roland to change their EULA years after the fact?



They aren't changing it; they are adding to it. Again, read the agreement:

_This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written.
_
Ever read this:_ this agreement is subject to change without notice? _That is legal.


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> It depends on what is covered by the term "their stuff." Yes, their company name, their product name, arguably their raw factory presets, but



Hold on! You are leaving something out. In addition to what you stated, it's their_ intellectual property_. Which is why this:

_the output (sounds) created by manipulating the parameters of the hardware that I now own, I'd suggest that is not their stuff. It's mine_.

is wrong.

Cheers.


----------



## Astronaut FX (Mar 18, 2016)

RiffWraith said:


> They aren't changing it; they are adding to it. Again, read the agreement:
> 
> _This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written.
> _
> Ever read this:_ this agreement is subject to change without notice? _That is legal.




Referring back to Mike's point about his JV1080, he wasn't supplied will a EULA at the time of purchase, so there was no "subject to change" passage. You can't allow them to make up new rules years after the purchase. You can't sell a product with no EULA at the time of purchase, and then insert one later. Well, you can, but will it hold up in court?


----------



## Astronaut FX (Mar 18, 2016)

RiffWraith said:


> Hold on! You are leaving something out. In addition to what you stated, it's their_ intellectual property_. Which is why this:
> 
> _the output (sounds) created by manipulating the parameters of the hardware that I now own, I'd suggest that is not their stuff. It's mine_.
> 
> ...




You can argue that the raw samples (if the hardware contains samples) and/or user presets are intellectual property. But once you start turning knobs, and adjusting parameters within the same piece of hardware that contains those samples/presets, I would suggest that they've been changed significantly enough that they are no longer the manufacturer's intellectual property. 

Back to one of Mike's points, if this were not the case, then anyone who recorded a song with a hardware synth violated the EULA (that they were never supplied with).


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> Referring back to Mike's point about his JV1080, he wasn't supplied will a EULA at the time of purchase, so there was no "subject to change" passage.



Well, you are persistent, I will give you that. 

_You can't allow them to make up new rules years after the purchase. You can't sell a product with no EULA at the time of purchase, and then insert one later. Well, you can, but will it hold up in court?
_
Don't see how it wouldn't. Again, they aren't changing it. It's not like the original EULA said, "you are allowed to make a derivative work", and the new EULA says, "you are not allowed to make a derivative work" - that might be a problem for them. But that is not what they are doing.


----------



## RiffWraith (Mar 18, 2016)

Tone Deaf said:


> Back to one of Mike's points, if this were not the case, then anyone who recorded a song with a hardware synth violated the EULA (that they were never supplied with).



No - writing a song (that is sold) using the sounds, and creating a new sample library (that is sold) from the sounds are two different things.



Tone Deaf said:


> But once you start turning knobs, and adjusting parameters within the same piece of hardware that contains those samples/presets, I would suggest that they've been changed significantly enough that they are no longer the manufacturer's intellectual property.



That suggestion gets thrown out the window when you consider that the owner of the IP gets to make the rules, and if that owner states you are not allowed to make a new sample lib, then you are not allowed to make a new sample lib.


----------



## Astronaut FX (Mar 18, 2016)

RiffWraith said:


> Well, you are persistent, I will give you that.
> 
> _You can't allow them to make up new rules years after the purchase. You can't sell a product with no EULA at the time of purchase, and then insert one later. Well, you can, but will it hold up in court?
> _
> Don't see how it wouldn't. Again, they aren't changing it. It's not like the original EULA said, "you are allowed to make a derivative work", and the new EULA says, "you are not allowed to make a derivative work" - that might be a problem for them. But that is not what they are doing.



Persistency is probably a polite word for it. 

I guess what I'm trying to point out is, that in the case of the 1080, there was no EULA at all in 1993. Mike confirmed that for us. And at that time, sample libraries weren't in anyone's radar as a possibility. And now, they (Roland) has one on their website attempting to retroactively protect themselves. You can't insert an agreement 23 years later and expect it to hold up. Their name and product name? Yes, protected even without a EULA. Those are protected by copyright. 

To be clear, I'm not championing ripping off Roland. I would never consider using their name, their product name, their samples, or their factory presets without permission. But I firmly believe that if I take one of their hardware devices, and use the built in parameter changing capabilities of the device to program my own patches, I feel I have every right to use those sounds in a song that I'm selling, or in a sample library I'm selling. 

Irony = Folks from an industry that makes a living creating derivative works (follow the temp), standing up for musical instrument manufactures' ability to be extremely heavy handed with respect to allowing derivative works.


----------



## Mike Greene (Mar 18, 2016)

JohnG said:


> good grief! It's common law. You can't take someone's trademarks and someone's "stuff," whether it's images, sounds etc. and start selling it as your own without their agreement.


I'm not sure what you mean by common law. Copyright law protects recordings (samples) and trademark law protects trademarks (if the trademark is actually registered), but as long as neither of those is violated, there's nothing illegal or unethical about recording an instrument or taking pictures of it.

Sampling a Roland D50 or JV-1080 is not legal, because both use samples in their sound generation. Copyright law forbids that.

However, sampling a MiniMoog is 100% legal. Sampling a Roland TR-808 is also 100% legal. In the eyes of the law, sampling either is the equivalent of sampling the white noise that comes out of an old tv, or sampling a guitar.

A little off topic, but photos are a similar situation. Not only can I photograph any guitar or synth (as long as no trademarked logos are in the picture), I can even photograph Eddie Van Halen holding that guitar, whether he likes it or not. (As long as it's in a public space.) And I can even sell that photograph without any permission required from the guitar maker or from Eddie. That's all legal. (With that said, I cannot then make a product and put Eddie's picture on it, because that implies an endorsement.)

So, I am allowed to make a sampled drum library based entirely on samples from the TR-808. And I am allowed to use a picture of the TR-808. However, I am not allowed to *call* it a TR-808 library, because that violates Roland's trademark. And I am also not allowed to have any trademarked logos in my artwork.


----------



## Mike Greene (Mar 18, 2016)

Tone Deaf said:


> I guess what I'm trying to point out is, that in the case of the 1080, there was no EULA at all in 1993. Mike confirmed that for us. And at that time, sample libraries weren't in anyone's radar as a possibility. And now, they (Roland) has one on their website attempting to retroactively protect themselves. You can't insert an agreement 23 years later and expect it to hold up. Their name and product name? Yes, protected even without a EULA. Those are protected by copyright.


Just to clarify, my point has been that Roland didn't _need_ to state anything in order to protect their copyrighted sounds. They could sue whether they posted a new EULA or not. Copyright law _already_ gives them that right. That's why I mused that technically, they could even sue us for using the instrument in recordings. (Although "intended use" means we're safe. It was just a silly musing.)

My guess is that they added the website language not to _secure_ their rights, but to _clarify_ for people who may erroneously think it is legal to sample a JV-1080. Similarly, half the paragraphs in my Realitone EULA are really just clarification of what the law already says. I'm not required to say, _"These samples are licensed, not sold..."_, for instance, but I say it anyway so that people understand what the situation is.

Again, with the JV-1080, their rights were already secured way back when they made the instrument in the 80's (90's?), even without any sort of protective language or EULA. Nothing pro-active on their part was required in order to keep that copyright protection. However, many people don't understand copyright law, so to make it clear, they've since added language to their website.


----------



## Lindon (Mar 21, 2016)

Mike said:


> But my contention is that it doesn't matter, at least not for a synth with samples involved. If there are sampled waveforms included in the instrument, then copyright law already forbids us from copying them, whether we "agreed" or not. So whether Roland explicitly forbids it or not, I'm not allowed to sample the 1080.



Actually this is a pretty common misconception about copyright law. My understanding (and I've spent a fair amount of time with copyright lawyers - tho' warning: I am not one) copyright law is at least partially constructed to explicitly ALLOW copying, its often referred to as "fair use". What you are not allowed to do is copy the whole thing and resell it as yours, but you ARE allowed to copy a reasonable part of the "works" (in this case that would be part of each sample so a pretty useless facility in this debate). "Reasonable" here gets decided by a Judge, not you not me.

But (and more interesting to us here) is you are also ALLOWED to copy a work, add some measurable value to it and resell that altered product, so you could sample their hardware(whatever that hardware is) recording it thru your lovely Neve amps and on to your very nice Otori tape deck, edit it nicely and resell that. You value added, or so you would claim before the aforementioned Judge who would do the deciding if you had "significantly" changed/value added the product in some way.

As to ownership giving you rights - well as Tone Deaf has pointed out if the vendor DOESNT explicitly and provably get you to agree to a license restriction (so putting a EULA on the web site after the fact probably wont fly) then no such restriction applies, and then (and only then) does "ownership of the hardware" count for anything. BUT copyright law still applies(as Mike suggested)

As I said the OP needs to value add the samples he's got and he's then in the same boat as all the other people selling value-added samples of famous drum machines.


----------



## Mike Greene (Mar 21, 2016)

Lindon said:


> Actually this is a pretty common misconception about copyright law. My understanding (and I've spent a fair amount of time with copyright lawyers - tho' warning: I am not one) copyright law is at least partially constructed to explicitly ALLOW copying, its often referred to as "fair use". What you are not allowed to do is copy the whole thing and resell it as yours, but you ARE allowed to copy a reasonable part of the "works" (in this case that would be part of each sample so a pretty useless facility in this debate). "Reasonable" here gets decided by a Judge, not you not me.
> 
> But (and more interesting to us here) is you are also ALLOWED to copy a work, add some measurable value to it and resell that altered product, so you could sample their hardware(whatever that hardware is) recording it thru your lovely Neve amps and on to your very nice Otori tape deck, edit it nicely and resell that. You value added, or so you would claim before the aforementioned Judge who would do the deciding if you had "significantly" changed/value added the product in some way.
> 
> ...


You could be right, and copyright law was definitely set up to encourage creation. In our particular case, it would be interesting to know exactly how much of a sample could be taken and exactly how much mangling would need to be done for it to be legal.

I think it's impossible to know, since it depends on the particular leanings of the judges and juries where a case would be tried. I remember a couple rap lawsuits where in one end, the Supreme Court decided 2 Live Crew's rendition of Pretty Woman qualified as fair use, while the judge in Biz Markie's "Alone Again" case went so far in the other direction that Biz Markie not only had to pay damages, but the judge also ordered all records removed from stores. And I still don't understand how the Marvin Gaye estate prevailed over Robin Thicke in the "Blurred Lines" case.


----------



## Andrew Aversa (Mar 22, 2016)

Fair Use is an affirmative defense of copyright infringement; it's not a *right* per se. There is a subtle but important distinction there. We have the RIGHT, for example, to obtain compulsory mechanical licenses of songs without the express permission of a copryight holder, so that we can create our own cover songs. If we follow the appropriate guidelines, we're in the clear. Fair Use on the other hand cannot be established except in a court of law. 

Fair Use is extremely squishy and subjective. Determining whether an infringement is in fact fair requires evaluation of factors like whether the new work harms the commercial viability of the original work, whether a large portion or a small one was used, whether the new work was commercialized or not, etc. But there is absolutely no set of guidelines that can say, "This use IS fair" or "This use IS NOT fair".



> But (and more interesting to us here) is you are also ALLOWED to copy a work, add some measurable value to it and resell that altered product, so you could sample their hardware(whatever that hardware is) recording it thru your lovely Neve amps and on to your very nice Otori tape deck, edit it nicely and resell that. You value added, or so you would claim before the aforementioned Judge who would do the deciding if you had "significantly" changed/value added the product in some way.



This is really not accurate. It sounds like you're conflating Fair Use (again, an affirmative defense and not a right) with compulsory mechanical licensing, which applies strictly to creating *new recordings of existing songs*, not creating new recordings based on existing *recordings*.


----------



## Lindon (Mar 24, 2016)

Yes I guess I wasnt clear, I wasnt trying to conflate "fair use" with this later example, but I wasnt clear (even tho I referenced the Judge in my example) that "fair use" as you describe is a defence and would be subject to a judgement in a court of law.

The second part of my example was an attempt to say that yet another defence is that you have value added the source material such that it now constitutes a separate work, nothing to do with mechanical licensing per se.

Anyway I think we are now disappearing down the rabbit hole so I'll stop now....


----------

