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User Journal

Journal Journal: Yerricde Signing Off? 8

by Damian Yerrick

I got the nick "yerricde" in late 1999 when my former school created my user accounts under a nick based on my legal name (Yerrick, Damian E.) It seems that too many people have seen an extra 'i' (*yerricide) in my nick. To prevent further confusion, I decided to phase out that nick starting in early 2002. I wrote a program in the Scheme language to generate a nick that's not so easy to misread, and the result was "tepples". You may recognize me from NewsForge, gbadev, DDRei, or nesdev.

I'm a quick reader. I'm also a quick typist. And I've held this Slashdot account for nearly four years. Though I have posted nearly 10,000 comments to Slashdot stories, claiming that I "have no life" would be thoroughly misleading. But some trolls seem to imply this, having started some sort of countdown to 10,000 comments by user "yerricde". I'd as soon shed this nick and ho up a new Slashdot account in the 720000's rather than let them win. I might even subscribe this time.

New on Pin Eight: GPL'd NES games | The real Brother Bear


Journal Journal: A Chilling Effect on Music 16

Here's what I know about music copyright and why I believe it is impossible to write songs without getting sued.

DISCLAIMER: This legal information is not legal advice. If you want legal advice, please contact an attorney who practices in your jurisdiction.


  • Title 17, United States Code, as of June 2003.
  • Interpretation of Title 17 in case law, including how case law defines originality.
  • The properties of Western music.

Prove: It is impossible for a person of modest means to write completely original music from Western principles.

1. Introduction to Copyright

1.1. Congress enacted the Copyright Act of 1976 "[t]o promote the [P]rogress of [S]cience and useful Arts" (U.S. Const., Art. I, sect. 8, cl. 8).

1.2. Copyright law grants specific powers of exclusion to the author of an original musical work, in a package called "copyright" (17 USC 102). A work in which copyright subsists is called a "copyrighted work". However, the author can assign a copyright to another person or may grant another person a "license" (guarantee that exclusion will not be asserted against an act, that is, permission to perform the act).

1.3. The creative expression in a musical work lies primarily in its melody, not in its arrangement for instruments (Jollie v. Jacques) nor in the lyrics (Blume v. Spear).

1.4. Ideas and facts embodied in a copyrighted work do not fall under the work's copyright (17 USC 102). However, a musical work's melody cannot convey facts and thus carries more pure expression than a literary work, which may convey facts (citation omitted).

1.5. In general, only the owner of copyright in a work may reproduce it, prepare derivative works from it, perform it publicly, or authorize others to do so (17 USC 106).

1.6. A fair use exception to copyright exists (17 USC 107), but it is quite narrow. Reproducing a musical work or preparing derivative works based on a musical work, and distributing the result commercially to the public, generally does not qualify (citation omitted).

1.7. Transformative use of a work tips the scales in favor of fair use. Direct parody may qualify as transformative (the "Oh, Pretty Woman" case, Acuff-Rose Music v. Luther Campbell et al.), but other humorous uses of a work generally do not (Walt Disney Productions v. Air Pirates).

1.8. In any case, whether or not a use is fair is decided case-by-case in a court of law (Harper & Row v. Nation). This means that the owner of copyright in a work can go lawsuit-happy, accusing anybody who even remotely copied his work of infringing. In addition, courts are likely to favor slightly the established author over the rookie author (Heim v. Universal Pictures; Allen v. Walt Disney).

1.9. Because a typical law firm charges over forty times minimum wage, Americans of modest means often cannot afford to defend a copyright infringement case. Therefore, Americans of modest means must steer clear of any action that might even remotely trigger the ire of a wealthy publisher that owns copyrights.

1.10. Courts have defined that D's work is a "copy" of P's work if D has had access to P's work and D's work is similar enough to P's work (Laureyssens v. Idea Group). Here, "D's work" refers to a work whose author is D.

1.11. Having heard a musical work publicly performed on is sufficient to establish access to the work (Bright Tunes Music v. Harrisongs Music). In practice, given the ubiquity and heavy rotation of commercial radio, it is nearly impossible to avoid hearing a given popular musical work on the radio. This may effectively give the plaintiff a presumption of access in a suit alleging infringement of the copyright in a popular song.

1.12. A striking similarity between two songs lends evidence that the author of one had access to the other (Wilkie v. Santly Bros.), especially when there is no reasonable way (in the judge's opinion) that chance or independent creation could have produced such a similarity.

1.13. Copyright infringement is a strict liability tort; the plaintiff in an infringement case does not have to prove intent or negligence, and the defendant can be held liable for infringement even when both sides agree that copying was an accident (Bright Tunes Music v. Harrisongs Music; Three Boys Music v. Michael Bolton).

1.14. A match of the eight most significant notes (Bright Tunes Music v. Harrisongs Music), or possibly as few as four key notes (the "Yes! We have no bananas!" case, citation omitted; the "I Love New York" case, Elsmere Music v. NBC), has been found to constitute probative similarity.

1.15. Musicians make fine distinctions when actually performing melodies, but judges are looking for similarity rather than an exact match (citation omitted).

1.16. When a judge doesn't see a long interval-to-interval match between two melodies, he will look for harmonic structure, melodic shape, question-answer structures and deviations therefrom, and possibly other aspects that musicologists bring up (Allen v. Walt Disney).

1.17. I have no evidence of the existence of a publicly available service that can detect which existing copyrighted works a given melody matches so that a songwriter can clear a supposedly original song before publishing it.

1.18. A compulsory license for musical works exists but is limited to exact reproduction of the character of the melody (17 USC 115). A musical work that "borrows a bit" from an existing musical work but is otherwise different does not qualify.

1.QED. Therefore, copyright prevents an author of a musical work (hereinafter, a "songwriter") from creating a musical work that contains more than a few notes of a popular musical work.

2. A Combinatoric Model of Music Theory

2.1. The following model is designed to approximate the model that a judge may use to assess the probative similarity of melodies of two musical works as in 1.13 and 1.14.

2.2. A "note" is a musical event with a definite pitch.

2.3. Two notes with the same pitch are the same note.

2.4. A "duration" is an interval in time between the onset of a note and the onset of the following note.

2.5. A "melody" is a sequence of intervals in time and pitch between notes. Intervals may be repeated.

2.6. Two melodies that start on the different notes but have the same intervals are the same melody. Thus, the pitch of the first note does not matter. Only intervals *between* notes count in the melody.

2.7. Two melodies that have the same intervals but played at a different overall rate are the same melody.

2.8. The Western musical scale contains twelve (12) pitches, named C, C#, D, D#, E, F, F#, G, G#, A, A#, and B, in ascending order of frequency. These pitches have standard frequencies in any of the several tuning systems.

2.9. Two frequencies close to the same pitch's standard frequency have the same pitch.

2.10. Western rhythm typically distinguishes about three (3) durations of notes in melodies: short, medium, and long.

2.11. A note in a melody can be played "staccato", or silenced before its duration is over; however, playing notes staccato does not change the fundamental character of the melody.

2.12. Because the last note in a melody does not have a duration, it is impossible to distinguish a short note at the end of a melody from a long note played staccato. Only intervals *between* notes count in the melody.

2.13. By 2.6 and 2.12, for a positive integer value of n, a melody with n notes has n - 1 intervals.

2.14. Twelve pitches times three durations equals thirty-six intervals.

2.15. First rule of combinatorics: For positive integer values of x, y, and z, if there are x ways to make a first choice, y ways to make a second independent choice, and z ways to make a third independent choice, there are x*y*z ways to make all three choices put together.

2.16. Thus, a melody with n notes, that is, n-1 intervals, has n - 1 choices to make. With 36 possible intervals, there are 36 to the power of (n - 1), or 36^(n - 1), ways to make a melody.

2.17. The plaintiff's musicologist should be able to mention enough "other aspects" of similarity (as described in 1.16 above) that occur by chance to get the judge to lower the threshold by one note.may occur by chance as often as one more note in the match. For example, an isolated eight-note match should occur as often as a seven-note match plus chance similarities.

2.18. Take six notes (five intervals) as the threshold for similarity. Inevitable chance similarities will lower this threshold to five notes, or four intervals. Thus, two random six-note melodies will match one out of 36^4 (one out of 1,679,616) times, and the probability of NOT matching is (1 - 1/1679616), or about 0.9999994046.

2.19. Bernoulli probability: If the probability of success of one independent trial is p, then the probability of n successes in n trials is p^n.

2.20. A performance rights organization known as BMI administers performance rights in 4.5 million copyrighted musical works. I could not quickly find the repertory size for ASCAP and SESAC; I'll optimistically assume that ASCAP and SESAC combined control only as many songs as BMI, for a total of nine million songs among the three of them.

2.21. At one million published songs, the probability that a random song is different from every other song is (1 - 1/1679616)^1000000 = 0.55, or about 55 percent. At two million songs, the probability of uniqueness worsens to 30.4 percent. At nine million songs, the estimated repertory size of the major U.S. performance rights organizations, the probability of uniqueness worsens to the longest of longshots: about 1 out of 212 according to this model that a song isn't similar to another song.

2.22. That was a bit pessimistic, so let's use a seven-note base threshold instead. Chance similarities will again lower this to six notes, or five intervals, and two random five-interval melodies will match in one out of 36^5 = 60466176 cases. For nine million songs, the probability that a song is unique rises to 86.2 percent, but a 13.8 percent chance of remaking someone else's melody remains significant.

THEOREM: A Chilling Effect on Songwriting

3.1. As explained in part 1, copyright law sets a standard for copyright infringement at copying (access plus probative similarity) plus unfair use.

3.2. Because heavy rotation may imply a presumption of access, and non-parodic appropriation of a melody is likely to be considered unfair, similarity alone may suffice to prove copying.

3.3. Given the model of part 2, it's nearly impossible to guarantee that one will avoid a chance similarity that a judge might find substantial.

3.QED. Therefore, it's nearly impossible to write an original song.

If you disagree with any of this analysis, please describe specific steps that a songwriter can take to make sure that he has in fact created an original musical work.

WORKS CONSULTED include the following:

User Journal

Journal Journal: The Basics of Soviet Russia Jokes 11

Some Slashdot users, in an attempt to get a comment moderated Funny, imitate a joke form introduced by Ukrainian-born comedian Yakov Smirnoff called the "Soviet Russia joke".

The common form of a Soviet Russia joke is not simple reversal of object and subject in the headline, as in this poor attempt. Instead, it reworks nouns and verbs in the headline in a way that implies control of individuals by machines or by large organizations. "In Soviet Russia, Segway drives YOU!" Make sure to omit articles ("a", "an", or "the") because Russian language does same.

Better is a Soviet Russia joke that refers to things that actually happen in actual Russia. For example, all works published outside of Russia before 1995 are in the public domain in Russia. "In Soviet Russia, Mickey Mouse is copied by YOU!" You may be able to squeeze even more humor by introducing the unexpected and breaking the Noun-Verb-YOU form: "In Soviet Russia, government doesn't worship Disney!" Or you can comment on the situation in "Soviet China" or "Soviet Germany" instead, as both are (China) or were (DDR) under Communist rule.

Best is a good Soviet Russia joke followed by a paragraph or so of actual content expounding on the thesis made in the joke. For example, one could give an overview of what happens in Russia to works first published at various times and why.

But be warned: Many bad Soviet Russia jokes seem to quickly gain a response from some ticked-off AC with subject "Dead Horse Beats You".


31 Jan: credit Yakov at MulluskO's request

8 Feb: Yakov is from Ukraine (thanks Big Sean O)


Journal Journal: Who Else Hates Disney? 5

In less than an hour, I will see The Walt Disney Company's second attempt to adapt Carlo Collodi's Pinocchio to the silver screen. I wonder how Disney's going to screw this one up. (Update: See my review in the comments.)

Before October 1998, my biggest beef with Disney was the fact that the writers mutilated classic stories beyond the minimum necessary for a movie adaptation, often completely changing the meaning of a story. Just look at what Disney did to, say, the story of Pocahontas.

After October 1998, I find the fact that Disney lobbied hard for the Sonny Bono Copyright Term Extension Act more than enough to demonize Disney. The company goes in, takes advantage of stories that have fallen into the public domain, then goes and gets a copyright extension so that other companies can't do the same thing. Now how hypocritical is that?

You can find more reasons to hate Disney at the web site of The Society of Disney Haters, which has been discussed on Kuro5hin.

Who else has something to say against The Walt Disney Company?


Journal Journal: Ask Toupsie: Migration From Floppy Disks? 8

toupsie wrote in "Mac OS X Switcher Stories":

"The Floppy is dead" and its continued promotion is a disservice to the public. It is not a cost effecient storage medium, takes up a ridculous amount of space for its storage ability and environmentally unsound. A 20 cent 700mb CD is far more efficient than a 5 cent 1.5mb Floppy. The only group that still believes in this tech are the floppy manufacturers and their marketing departments.

I am all for replacing floppy disks with recordable compact discs, but I see a few problems in the way:

A 12-cm (5-inch) CD-R disc does not fit into the pocket as well as a 3.5" floppy does. A spindle of fifty 8-cm (3-inch) CD-R discs currently costs significantly more than a spindle of fifty 12-cm CD-R discs. I could not find the smaller jewel cases for 8-cm discs at a Best Buy store or any other computer store within my walking distance, and using an 8-cm disc with a case for a 12-cm disc defeats the purpose of having an 8-cm disc.

Without a floppy disk drive, how does a fellow load the drivers for the CD-ROM drive so that one may begin installing the operating system on an older machine that does not support booting from an El Torito bootable CD?

Without a floppy disk drive, how does a fellow make an El Torito bootable CD in Roxio Easy CD Creator 4? In that program, when the user chooses New > Bootable CD, the program does the Windows API equivalent of dd to read 1440 KB of data sector-by-sector from the A: drive. Canceling the read cancels creation of the bootable CD.

Without a floppy disk drive, how does a fellow make a boot disk containing the Linux kernel for use in environments hostile to GRUB, such as dual-booting with Windows after installing some Windows service packs?

Without a floppy disk drive, how does a fellow move files from a four to six year old laptop computer (for which an internal CD recorder was never produced) to a new computer?

Journal Journal: How to Separate Ratings and Qualifiers in Moderation 5

In the Slashdot FAQ, CmdrTaco writes:

What about separating the rating (+1,-1) from the qualifier (off-topic, informative)? Often a post may be flamebait, but of excellent quality nevertheless.

While this may be true in some cases, its limited applicability doesn't justify complicating the moderators' user interface. Also, there's too much potential for abuse.

In effect, this has already been done. Each positive moderation has a corresponding negative moderation in the same spirit.

  • Interesting - "Yeah, it's interesting, but it relates to the parent comment, rather than to the article, so I'll mod you down as Offtopic."
  • Informative - "Yeah, it's informative, but somebody else posted a related point two seconds before you posted your comment, so I'll mod you down as Redundant."
  • Insightful - "You mean Inciteful. -1, Flamebait."
  • Funny - "It had me laughing out loud, but it's not politically correct. -1, Troll."
  • Underrated - "No, I'd rather push this comment down with the page-widening posts and never be held responsible in metamoderation. -1, Overrated."

Here, you can discuss this or any other issue concering Slashdot itself.

The Courts

Journal Journal: DMCA in Plain English 6

My latest essay, titled DMCA in Plain English, may help you begin to explain the Digital Millennium Copyright Act to the American masses and perhaps get more letters faxed to your representative and senators. (Yes, faxed, not e-mail that gets lost in the spam, not paper mail that is assumed to contain anthrax spores.) It's still very much a work in progress; please add comments.

Journal Journal: Console Game Controllers on PCs

This is a picture of a Nintendo 64 controller. ==>

The N64 controller handles many PC action games better than most PC game pads, especially USB Sidewinder pads whose directional controls are rotated clockwise 20 degrees, making it very hard to press straight south.

You can pick up a Nintendo 64 to USB adapter at, or, if you're handy with a soldering iron, you can build a parallel port adapter and use it with the DirectPad Pro software for Windows or with a recent version of the Linux joystick driver. DirectPad Pro also supports adapters for PlayStation and Super NES joypads.

If you're not handy with a soldering iron, and your games do not need analog control, get a Gravis GamePad Pro USB. For $20, you get the feel of a PSX controller.

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