Is using sample-based instruments incompatible with Creative Commons licenses?

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nils
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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by nils »

Since we do not know the actual law(s) at this moment, how about a little pascals wager (but with actually mutually exclusive options without infinity rewards or punishments):

Case study: Someone records single notes of an instrument and publishes the audio files on the internet under a "CC-BY" or "CC-BY-SA" license on the internet, the distinction doesn''t matter here.

The literal reading of the CC license text, plus reading all their firt party FAQ and explanations, shows that even a single 2 second instrument recording, and even more several dozens of them, make any music produced with these a "derived work" and must adhere to the conditions the CC license imposes: Credit the author (BY) and maybe release your own work under CC-BY-SA.

Leaving aside the (very very important!) intention of the sample author, let's say we cannot contact him, all the arguments made so far were:
"Yes, the literal reading of the CC license would impose their restrictions, but actually the law overrides the licese and my usecase (producing music) is a different section of the law so I don't need to follow the CC license."

You can either choose to do this or not, and you can be right or not. These are the possible outcomes:

Code: Select all

+------------+--------+----------+
|            | Legal  | Illegal  |
+────────────+────────+──────────+
| Use        | Good   | Bad      |
| Don't use  | Good   | Good     |
+────────────+────────+──────────+

We want to avoid the bad case

1) My personal opinion and consultation, that lead to the first unfa video, is that the CC license applies to instrument samples and therefore I don't use them improperly (e.g. without attribution). That means if I am wrong nothing bad happens! I either did not produce music or I credited a sample author where I didn't need to(!)

2) Some guy on youtube chose to ignore the CC license and recommends pretending it doesn't apply so just use the samples without following the license. If this position is actually wrong (what I believe) you land on the only "Bad" field in the table above. This is the only field we want to avoid.

My point is: this is not two equal opinions. In one (my, the cautious) case your loss is that you didn't get to use the samples in your music or did an author-credit "too much". In the other case you broke the law.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by nils »

A second answer, because I find that even more important:

Don't be an asshole. Just give credit.

Recording good instrument samples is a lot of work. It requires high skills on the instruments, expensive audio equipment and a lot of technical knowledge. And time, even for seeminlgy "small" instruments. And that author uses a CC-BY license as a gift to you. Just give a single line of credit. It's the right thing to do.

For example if you use https://vis.versilstudios.com/etherealwinds-harp.html (CC-BY) to produce yet another folk-metal cover for youtube just get over it and write that link in your video description after your 50 lines of patreon- and advertisment-spam. You are not fooling anyone to believe you are a harp player anyway, with that display of your two distorted power chords.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Impostor »

nils wrote: Thu Dec 08, 2022 1:45 pm

Don't be an asshole. Just give credit.
Recording good instrument samples is a lot of work.

Where do you draw the line though, if any? All the software one uses for making music takes a lot of work developing (and maintaining). OS, sequencer, synth plugins, effects plugins...To not be an asshole one needs to give credit for all of it. I'll just be an asshole then, and focus on making music, not on keeping administration.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Impostor »

nils wrote: Thu Dec 08, 2022 1:45 pm

For example if you use https://vis.versilstudios.com/etherealwinds-harp.html (CC-BY)

This raises a question: does the CC-BY license apply to just the instrument itself (you're free to copy/distribute/adapt the instrument as long as you give proper credit), or also to any sounds created with it?

Last edited by Impostor on Thu Dec 08, 2022 3:21 pm, edited 1 time in total.
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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by d.healey »

Impostor wrote: Thu Dec 08, 2022 2:50 pm
nils wrote: Thu Dec 08, 2022 1:45 pm

Don't be an asshole. Just give credit.
Recording good instrument samples is a lot of work.

Where do you draw the line though, if any? All the software one uses for making music takes a lot of work developing (and maintaining). OS, sequencer, synth plugins, effects plugins...To not be an asshole one needs to give credit for all of it. I'll just be an asshole then, and focus on making music, not on keeping administration.

Audio files are not software.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Impostor »

d.healey wrote: Thu Dec 08, 2022 3:21 pm
Impostor wrote: Thu Dec 08, 2022 2:50 pm
nils wrote: Thu Dec 08, 2022 1:45 pm

Don't be an asshole. Just give credit.
Recording good instrument samples is a lot of work.

Where do you draw the line though, if any? All the software one uses for making music takes a lot of work developing (and maintaining). OS, sequencer, synth plugins, effects plugins...To not be an asshole one needs to give credit for all of it. I'll just be an asshole then, and focus on making music, not on keeping administration.

Audio files are not software.

Wasn't my point.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Largos »

nils wrote: Thu Dec 08, 2022 1:34 pm

Case study: Someone records single notes of an instrument and publishes the audio files on the internet under a "CC-BY" or "CC-BY-SA" license on the internet, the distinction doesn''t matter here.

The literal reading of the CC license text, plus reading all their firt party FAQ and explanations, shows that even a single 2 second instrument recording, and even more several dozens of them, make any music produced with these a "derived work" and must adhere to the conditions the CC license imposes: Credit the author (BY) and maybe release your own work under CC-BY-SA.

Leaving aside the (very very important!) intention of the sample author, let's say we cannot contact him, all the arguments made so far were:
"Yes, the literal reading of the CC license would impose their restrictions, but actually the law overrides the licese and my usecase (producing music) is a different section of the law so I don't need to follow the CC license."

That's not really the argument. The argument is the license is worded to not override the default position of copyright for the purpose of your case study. The purpose of the license is to waive certain rights that copyright law gives if certain conditions are met. For example this is from UK copyright law.

Screenshot_20221208_152013.png
Screenshot_20221208_152013.png (52.84 KiB) Viewed 2364 times

Which means you can include small bits of copyrighted material as a part of your work, unless they fall into the category of anything mentioned in (3). As an isolated instrument sample isn't a musical work, it doesn't apply. Creative commons licenses state they don't override this with this section...

Screenshot_20221208_152447.png
Screenshot_20221208_152447.png (19.99 KiB) Viewed 2364 times

This is roughly the same for the US and any member country of the EU that is following it's official guidance (according to Carl Irwin's videos). Therefore, technically, the CC license doesn't apply for sample use in music in at least USA and Europe.

Is it good to have this "check in your own country, this might be ok, it might not ok" situation or anything that needs this level of explanation. No, which is why I will always say it's unsuitable.

Last edited by Largos on Thu Dec 08, 2022 4:23 pm, edited 1 time in total.
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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by j_e_f_f_g »

Ohhhhh. It sounds like nils is preparing a summons for somebody.

INAL. I just like reading legal (and medical) case studies, because I'm weird that way. As far as my understanding of U.S. copyright goes, there is nothing in Irwin's argument that sounds like legally "grasping at straws". In fact, his citations of existing U.S. law bolster and justify his conclusions. In a word, he appears to be correct regarding his contention that using sample libraries without any restrictions to create "transformative content", ie, a song, does not give the sample library author any rights over your music, or to financial gain accrued from your music.

Of course, this is a separate issue over whether the sample library author has the legal standing to sue you for license violation (which would be a contract law issue -- not a copyright issue). I'm not sure if this is the "separate issue" to which nils refers.

But U.S. contract law has a thing called "damages" which must be shown. The licensee has to prove that he lost some "tangible asset" (for example, income/money) due to the violation. In free sample libraries, there are no actual damages. So again Irwin is right in postulating that it's extremely unlikely a free library provider would sue (unless he either represents himself, or has deep pockets and money to burn for a lawyer).

There's a lot more I could say about this subject (for example, the effects of jurisdiction, punitive penalties, etc). But I've got real work to do, so you brats will have to fight with each other.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Impostor »

Off on a tangent for an interesting read:

https://doctorow.medium.com/a-bug-in-ea ... 6360713299

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by d.healey »

Largos wrote: Thu Dec 08, 2022 3:41 pm

Which means you can include small bits of copyrighted material as a part of your work

If you're in this territory it's probably lawyer time. What is a small bit? What if you use the small bit more than once to make a loop, does it then become a larger bit? What if you're entire work is made from small bits of the work of others.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by tseaver »

@Largos

https://youtu.be/EGMeEyS81p4?t=1098 "If you're worried about this you're paranoid, you're crazy, you're nuts"

OK, I hadn't watched all of his videos on the topic, only the first one:
https://www.youtube.com/watch?v=vt2fQvmE2ys

I'll note that, following the bits you quoted, he says here:
https://youtu.be/EGMeEyS81p4?t=1158,

If you're worried about that, I think it's because of the confusion about this word (i.e., "Sampling").... Look at the litigation and ... understand that that is entirely different, in every way, from using a synthesizer, a sampler, or a sampled sound library.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by tseaver »

@j_e_f_f_g

Of course, this is a separate issue over whether the sample library author has the legal standing to sue you for license violation (which would be a contract law issue -- not a copyright issue). I'm not sure if this is the "separate issue" to which nils refers.

Based on decades of work as a full-time FLOSS developer: licenses such as the BSD, GPL or CC* licenses are not contracts: there is no "exchange of value" which would create a contract between two parties. Rather, they are explicit waivers on the part of the licensor of rights which would otherwise prevent the licensee from copying a protected work.

There have been successful lawsuits compelling violators of e.g. the GPL to release code or pay damages, but such suits aren't based in contract law.

This distinction gets muddled by proprietary software / sample libraries, where the "L" in "EULA" stands for "license", and the EULA itself is part of a contract between the seller and the buyer.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Largos »

d.healey wrote: Thu Dec 08, 2022 5:26 pm
Largos wrote: Thu Dec 08, 2022 3:41 pm

Which means you can include small bits of copyrighted material as a part of your work

If you're in this territory it's probably lawyer time. What is a small bit? What if you use the small bit more than once to make a loop, does it then become a larger bit? What if you're entire work is made from small bits of the work of others.

1: In the context of this discussion, a one short sample. A note for an instrument etc
2: No because it doesn't change the size of the original bit.
3: Each individual bit will be classed as incidental.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by d.healey »

Largos wrote: Thu Dec 08, 2022 6:13 pm

1: In the context of this discussion, a one short sample. A note for an instrument etc
2: No because it doesn't change the size of the original bit.
3: Each individual bit will be classed as incidental.

If we're talking about a single sample I think we are now talking hypothetical scenario rather than a real world one.

I also worry about your interpretation of incidental as meaning "small bits". Incidental can be a synonym for accidental and in the context of copyright I can see that definition being applicable in certain circumstances. For example if I was shooting a video in a shopping mall and the mall is playing some music which is picked up on my recording, that would be incidental to my work.

As I am not a legal expert I defer interpretation of the law to a professional and in the meantime I will follow the instructions of the license.

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Re: Is using sample-based instruments incompatible with Creative Commons licenses?

Post by Largos »

My bad, looking back on it I didn't really type what I meant properly, sorry. I should have said something like "Small bits of your work may be copyrighted material" Incidental refers to it's relative position in the work. I'll give examples.

  1. You record a snare drum and release it as an instrument sample. You own the copyright of this.
  2. I download it and upload it to my own website as a snare sample. You own copyright of the sample.
  3. I use it as part of a recorded song. I own copyright of the recording, The snare drum occurs incidentally, as a minor part of the recording.

As explained in the videos, any other way would mean the makers of any instrument, virtual or otherwise that uses audio files would own a stake in every song their instrument was used to create. Ergo, Roger Linn does not have a stake in the songs his drum machines were used in.

For example if I was shooting a video in a shopping mall and the mall is playing some music which is picked up on my recording, that would be incidental to my work.

Yes, but it would be incidental regardless of whether it was accidentally or deliberately recorded. Which is why the (3) clause is put in the UK law example to make the differentiation between the intent.

Last edited by Largos on Fri Dec 09, 2022 2:48 pm, edited 1 time in total.
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