Apple Sued For Copyright Infringement Because Third Party App Has Someone Else's Bird Sounds
from the tweet-tweet dept
Eric Goldman points us to a copyright infringement lawsuit filed against Apple, because of a third party application for the iPhone called iBird (the developer of that program has also been sued). Apparently, one guy, Martyn Stewart, has gone around and recorded a bunch of different nature sounds, and the developer of iBird used them in his program. Stewart has an application in to register the copyrights, which seems pretty iffy to me: what "originality" did he actually add to the recording?The developer of iBird seemingly admits to using Stewart's sounds. If you actually accept the idea of the copyrights on those sounds, then it seems like it should be a lawsuit solely between Stewart and the iBird developer. But including Apple because it offers iBird in the iPhone app store seems pretty ridiculous. On top of that, there's some oddity on the timing as well. Stewart admits that he's been collecting these sounds for 35 years, and that the iBird developer first approached him in 2007. But he only filed an application to copyright the sounds in December of 2009, which may cause some difficulty for him (though, it's not clear when the iBird product was actually released, which could make a difference here).
Either way, I can't see how Apple has any liability here at all, unless Stewart sent a DMCA takedown that was ignored, and there's no indication of that in his lawsuit. This feels like a typical "Steve Dallas lawsuit" in that it lumps in a big company tangentially related to the lawsuit, just because it has lots of money, and the guy suing is hoping against all the odds (and common sense and the law) that it will somehow pay up or be forced to pay up.
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Filed Under: app store, copyright, ibird, iphone, third party liability
Companies: apple
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Given the way that copyright currently works this is perfectly reasonable so I don't see this case as particularly special.
Of course you might say that the way copyright currently works is NOT reasonable - and I might agree - but that is another matter.
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Re: Re:
I don't buy that. The reason given for why a photographer gets some form of copyright on an image is because of their creative choices in framing. That is, the actual content of the image is not copyrighted, but the framing/angle/etc. might be. The only part of the photograph that is technically covered are the creative choices of the photographer.
So if we apply that to sounds... then it's much more difficult to find the copyright. What "creative choices" were made in the recording of the sound? The "framing" (i.e., where to start and stop)? Maybe, but that seems like a difficult argument to old up in court.
I just don't see which part of the recording actually gets copyright.
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Timing of filing
You're confusing copyrights with patents. The sounds were copyrighted by him the moment he recorded them.
Also, as Apple is distributing the copyrighted works without a license, it seems perfectly reasonable to sue them for it.
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Re: Timing of filing
In my opinion, Apple is distributing nothing. They are supplying the store front for someone else to distribute the goods. This would be like suing the mailman for delivering a letter bomb...Now, I'm not sure if they can get into trouble because they screen and approve their apps, but I'm sure they have enough legaleeze written into the agreement when someone posts a new app to cover them for almost everything..
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Re: Re: Timing of filing
That type of "legaleeze" would protect them from the app developer sueing them, It could never protect them from a 3rd party sueing them because, quite obviously, you cannot sign someone else rights away without them giving you the right to do so in the first place
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Re: legaleze
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Re: Re: Timing of filing
That's not someone else distributing the goods. A better analogy is Best Buy selling counterfeit DVDs. The supplier of the DVD is guilty of copyright infringement, but Best Buy would be liable as well.
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Re: Re: Re: Timing of filing
Yes, they are a service provider, protected under section 512 of the DMCA. They are not to be considered the distributor.
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Re: Timing of filing
No, I'm not actually.
The sounds were copyrighted by him the moment he recorded them.
Indeed. But if you want to *sue* for copyright infringement, the time of registration matters a ton. And if you register the copyrights 2 years after someone is using them, you're not going to get very far in your lawsuit.
Also, as Apple is distributing the copyrighted works without a license, it seems perfectly reasonable to sue them for it.
No, actually, it doesn't. See the recent Viacom/YouTube ruling for details.
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Re: Re: Timing of filing
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If the works are copyrighted then yes apple should be on the hook, not only are they profit sharing with developer (instead of just buying and selling on or charging a fix price to use their service) but also with their strict control over the app store they are very far from just a dumb 3rd party retail outlet like say EBay
Would go as far to say, by using a profit sharing model instead of standard charge and the extreme control over what can go on the app store I would say in any case involving copyright/patent violations or even criminal conduct of 3rd party app developers, apple can and should be a viable target
Be and act like impartial 3rd party? Be safe.
Act like big brother ‘partner’? Be your brother’s keeper and pay the price when he mess’s up
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What????
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Re: What????
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Re: Re: Re: What????
"Sound recordings" as opposed to "music" is actually explicitly mentioned in the Copyright Act.
To the extent that there's no creative element in just the recording, the argument is that it's similar to photography. Photographs are clearly covered by copyright (and photographers argue that there is an element of skill and creativity in it), so why shouldn't sound recordings?
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Re: Re: Re: Re: What????
But the argument is that the copyright in photographs is only on the creative elements supplied by the photographer (i.e., framing, and potentially lighting or setup, if they had a say in setting it up).
I'm trying to figure out which elements apply in a sound recording, and I'm not sure any do. At best you could make an argument for when the recording starts and stops ("the framing"), but if it's, say, a complete bird cry, then even that is not actually the recorder's creative choices at all.
So then I'm left wondering what is actually copyrightable.
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Re: Re: What????
I'm still not convinced this is true. You only get copyright on the creative choices that you made. So which creative choices are made in recording a bird?
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Re: Re: Re: What????
Format: stereo/mono/multichannel (surround)
codec, bitrate
wave, ogg, mp3, flac
microphone type(s): single/dual capsule
dynamic, condenser, binarual
mic pickup pattern: omnidirectional, cardiod, binaural
mic preamp type: vacuum tube, solid state analog. digital
Aesthetic choices made in mixing source recordings.
Audio-for-video could involve balancing complex interactions of elements in the case of surround sound.
Aesthetic and technical choices made in final mastering of said recordings.
For starters.
Audio people are just as creative and aesthetically skilled as any other creative folks. I have no idea if this "birdist" fellow is very accomplished in this area but the presumption is there if his creations were of a high enough caliber to be incorporated into a product that someone would want to use.
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Re: Re: Re: Re: What????
codec, bitrate
wave, ogg, mp3, flac
microphone type(s): single/dual capsule
dynamic, condenser, binarual
mic pickup pattern: omnidirectional, cardiod, binaural
mic preamp type: vacuum tube, solid state analog. digital
Aesthetic choices made in mixing source recordings.
Audio-for-video could involve balancing complex interactions of elements in the case of surround sound.
Interesting. I am not convinced that "technical" choices count as creative choices. Are you aware of court cases that have held that?
Audio people are just as creative and aesthetically skilled as any other creative folks. I have no idea if this "birdist" fellow is very accomplished in this area but the presumption is there if his creations were of a high enough caliber to be incorporated into a product that someone would want to use.
I'm not saying audio people are not creative. I'm questioning whether or not recording a bird sound is copyrightable.
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Apple Isn’t Neutral
I expect Apple’s paternalistic attitude toward Store apps will come back to bite them on this one.
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Re: Apple Isn�t Neutral
If a high-end grocery store (which heavily samples each product before putting it on the shelves) approves a product and it later turns out that the product's label had an infringing image, is the store responsible for the product producer's folly?
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Re: Re: Apple Isn't Neutral
Apple seems to vet the entire app, and with a non open process, it seems to have complete control over the apps. Will apple allow anything that breaks the US law into the store? say a copy of a banned book? if not, then yes, they have stated "we vet apps for legality, and this one we said was legal, so opps our fault"
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Re: Re: Re: Apple Isn't Neutral
Maybe someone can give a legal perspective on this.
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There is a lot of creative skill and effort involved with getting the equipment set up in a way that captures the specific sounds in an effective way, and in filtering out unwanted background noise. How is this any different from a photographer claiming copyright over a photo of wildlife?
Although, I agree that Apple should not be involved at all. They are just a service provider, and so the correct way for the copyright holder to deal with this issue is to file a DMCA takedown notice with Apple and/or take up the issue directly with the developer.
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Re: Recording Copyright
Lachlan Hunt claimed:
If that were true, then audio engineers would be able to claim copyright on the studio recordings that they make. But they can’t.
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Re: Re: Recording Copyright
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Re: Recording Copyright
Lachlan Hunt claimed:
But not by the audio engineers.
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He had to register for copyright before he is entitled to certain monetary damages, as opposed to injunctive relief. Its possible to defend a copyright without registering it, but harder to obtain damages.
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Copyright
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hey guys, wrong target
The topic discussion is about how this guy is going after Apple like going after Google for search results.
PLUS, the added idea that this guy didn't have any copyrights on his recording when the app devel asked him in 2007 and suddenly this rights holder decided to get a copyright then sue the devel.. WTF?!
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Re: hey guys, wrong target
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Re: Re: hey guys, wrong target
You are misinformed here. His recordings, which wouldn't have existed if he were not Doing His Work, come under copyright law regardless.
You personally may disparage a 10 hour recording of nature sounds, but even with ZERO editing your personal opinion is irrelevant.
The way it works at present is:
SOUNDS cannot be copyrighted in and of themselves.
RECORDINGS can and are.
BTW I am not now and have never been affiliated with the mafiAA's or the entrenched "old media" crooks (like APPLE) that are IMO a blight on the cultural landscape.
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Re: hey guys, wrong target
"PLUS, the added idea that this guy didn't have any copyrights on his recording when the app devel asked him in 2007"
The "guy" had a copyright on the recording the instant he made the recording. He may not have *registered* the copyright, but copyright is automatically applied to any fixed recording. He didn't decide to get a copyright. He may have decided to enforce it, but he already had it.
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I dunno know about that - in this case. Apple takes 'complete control' over which apps are offered in the store. It's not like Google would be - just finding information out there.
Apple has a conscious grip of control on the apps, so it would seem to me, because of that, they would share some in the liability. They have 'approved' it after all.
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i have to wonder mike, do you have an financial dealings with apple? have they offered you any free products, services, use of their facilities, or other in the past?
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As for Apple, I feel that, considering the way they keep such well documented strict and arbitrary control over what goes into their app store, the argument against them is not out of line. As has been suggested, it is a much more closed system and not the same model as something like youtube or ebay, and to claim otherwise almost seems disingenuous to me. If you are going to unashamedly wield authoritarian control over what goes into your store, then you must accept responsibility for what is in it.
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Confirm every detail of an App?
Isn't it ultimately the developers responsibility to obtain all appropriate licenses? Would Apple know if any content is not licensed? Are they supposed to follow up on every detail? That could include all images being used, sounds, etc.
That would be a huge undertaking for any service provider, not to mention the resources to track everything down. I'm not saying Apple is innocent or guilty here, just trying to understand this.
Someone else mentioned that Best Buy would be responsible for counterfeit DVD's. I would agree if they knew these were counterfeit. What if the provider is dishonest... I suppose Best Buy could go after them for putting them into that position.
Apple could probably do the same???? I don't know, I'm not a legal expert.
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Apple and Waite's fault
It was also used to promote the iPad recently. Apple should have contacted all parties associated with the app before they went on their extensive advertisement campaign.
Imagine someone with a blackberry phone wanting the iBird app, They buy the iPhone to get the app facility. Of course Apple are responsible.
All recordings are copyrighted, anyone can record nature but the fact he recorded individual birds and singled them out is an art.
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