Apple Sued For Copyright Infringement Because Third Party App Has Someone Else's Bird Sounds

from the tweet-tweet dept

Fri, Jun 25th 2010 2:02am — Mike Masnick

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: app store, copyright, ibird, iphone, third party liability
Companies: apple

49 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 25 Jun 2010 @ 2:38am

Wha The? So... if he's able to copyright the 'original' sounds of birds, then he can sue all the wildlife that he has recorded! That would be a groundbreaking case!
[ link to this | view in thread ]
Kurata, 25 Jun 2010 @ 3:14am

Honestly, copyright on wildlife sounds? Next, he's going to get a copyright on a word? ohwai-
[ link to this | view in thread ]
Mark, 25 Jun 2010 @ 3:44am

Timing of filing
"But he only filed an application to copyright the sounds in December of 2009, which may cause some difficulty for him"

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.
[ link to this | view in thread ]
AJ, 25 Jun 2010 @ 3:57am

Re: Timing of filing
"Also, as Apple is distributing the copyrighted works without a license, it seems perfectly reasonable to sue them for it."

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..
[ link to this | view in thread ]
JackSombra (profile), 25 Jun 2010 @ 4:01am

Putting to one side the issue should he be able to claim copyright at all.

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
[ link to this | view in thread ]
JackSombra (profile), 25 Jun 2010 @ 4:03am

Re: Re: Timing of filing
" but I'm sure they have enough legaleeze written into the agreement when someone posts a new app to cover them for almost everything.."
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
[ link to this | view in thread ]
Nick (profile), 25 Jun 2010 @ 4:11am

Re:
I agree, the app store isn't a dumb pipe like say, youtube. With the amount of control they force, they should be liable. They review all apps for approval, they approved it, they are infringing as well.
[ link to this | view in thread ]
Josef, 25 Jun 2010 @ 4:17am

What????
Can you copyright sounds of wildlife? It seems like a stretch to be able to copyright something like that.
[ link to this | view in thread ]
Lawrence D'Oliveiro, 25 Jun 2010 @ 4:17am

Apple Isn’t Neutral
Remember, Apple takes an active hand in accepting and rejecting applications in the iPhone App Store. They scrutinize every application before letting it in (and sometimes again after), so they clearly take responsibility for what’s available in the Store.

I expect Apple’s paternalistic attitude toward Store apps will come back to bite them on this one.
[ link to this | view in thread ]
Richard (profile), 25 Jun 2010 @ 4:26am

Re:
The copyright would relate to his recordings -just like a wildlife photographer would have copyright on his films or images.

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.
[ link to this | view in thread ]
Lachlan Hunt (profile), 25 Jun 2010 @ 4:42am

There's nothing wrong with claiming copyright on recordings of wildlife sounds. As far as copyright is concerned, that's no different from recording the sound of anything else.

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.
[ link to this | view in thread ]
Evan, 25 Jun 2010 @ 4:47am

Yes I agree that it's silly to be going after Apple here. Just a minor detail I'd like to comment on - Apple's liability, if any, would not necessarily depend on whether it ignored or abided by a DMCA takedown notice. Even if it did choose to ignore it in this case, that doesn't automatically mean it would be on the hook.
[ link to this | view in thread ]
Deirdre, 25 Jun 2010 @ 4:51am

I thought the name sounded vaguely familiar so I looked him up. He records nature sounds for documentaries. He also has produced CDs of nature sounds.

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.
[ link to this | view in thread ]
JR Smith (profile), 25 Jun 2010 @ 5:51am

Copyright
As I see it, the birds should sue as the guy recorded them without their permission.
[ link to this | view in thread ]
reboog711 (profile), 25 Jun 2010 @ 6:07am

Re:
There are two aspects of copyright here. One is on the recording, and other is on the material being recorded. He should have no problem copyrighting his recording of those sounds; but should have no right to be able to copyright the sounds.
[ link to this | view in thread ]
reboog711 (profile), 25 Jun 2010 @ 6:10am

Re: What????
As others have said; he can copyright recordings of wildlife sounds that he made without claiming any ownership over the original sounds.
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2010 @ 6:12am

Re: What????
You are aware that all human speech is "wildlife sounds" right?
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2010 @ 6:19am

Re: Apple Isnâ��t Neutral
This has nothing to do with responsibility and everything to do with control over the image.

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?
[ link to this | view in thread ]
Bengie, 25 Jun 2010 @ 6:24am

hey guys, wrong target
Most of you act attacking the fact he copyrighted the recording of wildlife sounds. This is acceptable and no different than copyrighting a picture you took in the forest.

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?!
[ link to this | view in thread ]
Overcast (profile), 25 Jun 2010 @ 6:41am

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.

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.
[ link to this | view in thread ]
Hephaestus (profile), 25 Jun 2010 @ 7:16am

Re:
There have been patents on beans ( non-GM ). Yeah just another example of why this system of IP is going to fail and be rebuilt.
[ link to this | view in thread ]
Hephaestus (profile), 25 Jun 2010 @ 7:17am

Re: Re: What????
Dude that is brilliant!!
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2010 @ 7:55am

"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. " - in the end, you dont know at all one way or the other what has lead up to this.

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?
[ link to this | view in thread ]
toaster fork, 25 Jun 2010 @ 8:02am

I must agree with those who defend this man's copyright. As I understand it, works are protected the moment they are "fixed", meaning in this case recorded, not the moment they are "registered." In that sense, these are copyrighted recordings. It is not the actual sound that is copyrighted but the recording. The app developer could have made the effort to create his own recordings, but did not. So he is responsible for compensating the owner of the recordings if he did not get permission to use them.

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.
[ link to this | view in thread ]
Cynyr (profile), 25 Jun 2010 @ 8:02am

Re: Re: What????
but i thought that to get a copyright they had to artistic in some way, the specific sounds a particular bird makes seems like it is a "fact" and not "art" and therefor shouldn't be copyright-able. Like phone number in the phone book, maybe he then uses the sounds to play songs, great, but if it is "press button to hear a cardinal" then i don't think he should have a claim.
[ link to this | view in thread ]
Cynyr (profile), 25 Jun 2010 @ 8:08am

Re: Re: Apple Isn't Neutral
yes. if the store has policies about what the label needs to look like, if the store simple samples for the quality of the product only, then no.

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"
[ link to this | view in thread ]
Cynyr (profile), 25 Jun 2010 @ 8:12am

Re: hey guys, wrong target
depends IMO, is it "Press button to hear cardinal" or is the app, "Listen to the birds of the woods"? if it's the second one, sure give him his copyright if it isn't just a 10 hour recording of a particular place with minimal editing, but the first is just facts. facts cannot be copyrighted. see a phonebook, the layout could be(if it is creative and not simply a listing), but the numbers cannot.
[ link to this | view in thread ]
toaster fork, 25 Jun 2010 @ 8:20am

Re: Re: Re: What????
It is not the "fact" that is copyrighted, it is the "recording" of the fact. To use the same analogy of "facts," if I report on a news story, giving only facts, that is allowed. Reprinting an article verbatim written by someone else (without permission) is disallowed, regardless of the factual content.
[ link to this | view in thread ]
legal Schmeagle, 25 Jun 2010 @ 9:09am

Re: legaleze
actually it is in the form of "hold harmless" which means that the other party will pay legal fees and in the event of a judgement, that as well.
[ link to this | view in thread ]
Mark Levitt (profile), 25 Jun 2010 @ 9:22am

Re: hey guys, wrong target
Um no. Apple, in regards to that iOS App Store, is a publisher and distributor. They aren't merely indexing the application. Apple sells the application (including the copyrighted work), collects money for it, and keeps a portion of the fee for the application. That's a completely different relationship to Google.

"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.
[ link to this | view in thread ]
Mark Levitt (profile), 25 Jun 2010 @ 9:26am

Re: Re: Timing of filing
The applications exist on Apple's servers (or servers under Apple's control) and, when you purchase the application, Apple's software makes a copy of the software and sends it to your computer.

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.
[ link to this | view in thread ]
Andrew F (profile), 25 Jun 2010 @ 9:43am

Re: Re: Re: What????
Copyright of music is distinct from copyright of sound recordings. That's why songwriters and recording companies sometimes go after copyright infringers separately.

"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?
[ link to this | view in thread ]
Mike Masnick (profile), 25 Jun 2010 @ 11:19am

Re: Timing of filing
You're confusing copyrights with patents.

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.
[ link to this | view in thread ]
Mike Masnick (profile), 25 Jun 2010 @ 11:22am

Re: Re:
The copyright would relate to his recordings -just like a wildlife photographer would have copyright on his films or images.

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.
[ link to this | view in thread ]
Mike Masnick (profile), 25 Jun 2010 @ 11:23am

Re: Re: Re: Timing of filing
The applications exist on Apple's servers (or servers under Apple's control) and, when you purchase the application, Apple's software makes a copy of the software and sends it to your computer.

Yes, they are a service provider, protected under section 512 of the DMCA. They are not to be considered the distributor.
[ link to this | view in thread ]
Mike Masnick (profile), 25 Jun 2010 @ 11:24am

Re: Re: What????
As others have said; he can copyright recordings of wildlife sounds that he made without claiming any ownership over the original sounds.

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?
[ link to this | view in thread ]
Mike Masnick (profile), 25 Jun 2010 @ 11:26am

Re: Re: Re: Re: What????
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?

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.
[ link to this | view in thread ]
ranon (profile), 25 Jun 2010 @ 11:54am

Re: Re: Re: Apple Isn't Neutral
There is a question whether the DCMA safe harbours apply to Apple. Unlike other providers, Apple selects the apps which go up in it's store.

Maybe someone can give a legal perspective on this.
[ link to this | view in thread ]
Jeffry Houser, 25 Jun 2010 @ 12:05pm

Re: Re: Timing of filing
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. I thought that time of registration only had an affect on the amount of damages you can claim / collect. You make it sound like it has an affect on their ability to put together a legal case.
[ link to this | view in thread ]
Lodin, 25 Jun 2010 @ 12:51pm

Confirm every detail of an App?
I'm trying to understand how Apple can ultimately be held responsible?

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.
[ link to this | view in thread ]
Dave Bloom, 25 Jun 2010 @ 1:30pm

Re:
I was thinking the same thing. Apple opens itself up to liability because the approval process. They are not acting as a disinterested 3rd party here. Unlike YouTube, they are reviewing all apps made available through their storefront.
[ link to this | view in thread ]
Lawrence D'Oliveiro, 26 Jun 2010 @ 12:04am

Re: Recording Copyright
Lachlan Hunt claimed:

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.

If that were true, then audio engineers would be able to claim copyright on the studio recordings that they make. But they can’t.
[ link to this | view in thread ]
Lachlan Hunt (profile), 26 Jun 2010 @ 4:48am

Re: Re: Recording Copyright
Lawrence, the recordings done in a studio are copyrighted. The issue of who holds the copyright, whether it be the studio, the artist, recording company, or whatever, is an entirely separate issue to the question of whether recordings themselves can be copyrighted.
[ link to this | view in thread ]
Anonymous Engineer/Producer, 26 Jun 2010 @ 6:01am

Re: Re: Re: What????
"So which creative choices are made in recording a bird?"

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.
[ link to this | view in thread ]
Anonymous Engineer/Producer, 26 Jun 2010 @ 6:19am

Re: Re: hey guys, wrong target
"depends IMO, is it "Press button to hear cardinal" or is the app, "Listen to the birds of the woods"? if it's the second one, sure give him his copyright if it isn't just a 10 hour recording of a particular place with minimal editing, but the first is just facts. facts cannot be copyrighted. see a phonebook, the layout could be(if it is creative and not simply a listing), but the numbers cannot."

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.
[ link to this | view in thread ]
Mike Masnick (profile), 26 Jun 2010 @ 11:34pm

Re: 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.

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.
[ link to this | view in thread ]
Anonymous, 28 Jun 2010 @ 7:19am

Apple and Waite's fault
Apple used the app to promote the iPhone extensively. It was used in 2 advertisements in between shows like American Idol (120 million viewers)
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.
[ link to this | view in thread ]
Lawrence D'Oliveiro, 2 Jul 2010 @ 2:00am

Re: Recording Copyright
Lachlan Hunt claimed:

Lawrence, the recordings done in a studio are copyrighted.

But not by the audio engineers.
[ link to this | view in thread ]
Matt, 19 May 2015 @ 9:18pm

Re: Timing of filing
wtf is this world coming to
[ link to this | view in thread ]