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Thomas: Hello and welcome to Opening Arguments, this is episode 365! Wow, that means you can start episode 1 on January 1st of the year and get to now.
Thomas: I dunno why you’d wanna do that, but you could and it would be a full year. Anyway, how’re you doing, Andrew?
Andrew: Well, I’m looking up after that now that you can get Opening Arguments every day for an entire year.
Andrew: That’s, um, I feel good!
Thomas: We can even do – we can pause at like a quarter through this episode and it would be 365 and a fourth. Perfect!
Thomas: Count for the leap year.
Andrew: It’s sidereal, right, exactly.
Thomas: [Laughs] Ah, we have even more fun stuff to talk about. I am so excited about this episode, it’s music law. We’re gonna talk about the viral story that some programmers wrote every possible melody and tried to copyright that. As a reminder, go back and listen to our Led Zeppelin episode because that was so much fun. You know, it was peanut butter and chocolate, it was a marriage made in heaven.
Thomas: It was music, which is kind of my passion, and law, of course, which Andrew knows something about, and it was a ton of fun. We both unite, Andrew, on Led Zeppelin, right?
Andrew: Oh yeah. Yeah, absolutely.
Thomas: Isn’t that the place where we can kinda? Okay, good.
Andrew: I mean, yeah, we were a two man Voltron on that episode, absolutely.
Thomas: [Laughs] So much fun. But we can do that, we also get Clarence Thomas-
Andrew: People get to hear you play guitar which is super cool!
Thomas: Yeah, a little bit.
Andrew: You’re super good at it! So, yeah.
Andrew: I mean, they get to hear that-
Thomas: I’m okay. [Laughs]
Andrew: They get to hear that every episode in the opening and closing credits-
Thomas: Oh, that’s true, that’s true.
Andrew: But you covering some Led Zeppelin.
Thomas: Was fun, play a little Stairway.
Andrew: Yeah! Wooo!
Thomas: I’d never learned Stairway because it was always the, you know.
Andrew: [Laughs] Play Stairway!!
Thomas: We had Wonderwall. Does every generation have the song that you’re the – so I dunno if you know this, Andrew, but in High School you’ve got the guitar guys-
Thomas: I only was barely one because my parents didn’t let me have anything, but eventually I was able to have a guitar for like a semester of high school. The thing is there’s the song that everybody learns because it’s like the easy song to be able to play and sound like you kind of play, and for us that was Wonderwall. That was my era’s song, I wonder what your era, high school era’s song was that everybody would learn and everybody’s like “uck, you can only play Wonderwall” kind of thing?
Thomas: Everyone report in! Tell us what that was for you.
Andrew: Yeah, please do. If you went to high school in the late 80s, early 90s.
Thomas: Any time that’s not me, ‘cuz I know Wonderwall was ours. Other than that I’m very curious to hear what anybody’s was. Nowadays it’s just every song on the radio ‘cuz they’re all three chords and it’s easy.
Thomas: Anyway! Let’s get to music law! [Laughs]
Andrew: Hey, we’re already there!
Thomas: And also – yeah! I just wanna tease the Clarence Thomas stuff, that’s gonna be super fun to hear him argue with himself I guess in the main segment, then we’ve got a Wild Card Segment? Listener question, hopefully we’ll get to. Depends on how music law goes and Clarence Thomas law, but that’s our agenda. Now let’s get to music law, Andrew!
Music Law – Every Melody Ever
Thomas: So set us up. I mean, I already kind of did, but some programmers wrote every possible melody. Now, there’s gonna have to be some constraints on that, right? Is it every 4-note melody, is it every- what are the constraints on that?
Andrew: Yeah, so this is a story from Vice that has come to our attention about two gentlemen, Damien Riehl and Noah Rubin, and I’m going to read to you two paragraphs from the article because I’m skeptical about the first one and then the second one is – I don’t understand it. [Laughs] So I’m gonna ask for your expertise.
Andrew: Alright, so lead paragraph. “Two programmer-musicians wrote every possible MIDI melody” M-I-D-I –
Thomas: Midi. Yeah.
Andrew: -melody in existence to a hard drive, copyrighted the whole thing, and then released it all to the public in an attempt to stop musicians from getting sued.”
Okay, I’m gonna be able to explain all the law stuff around that, the music question is – every melody in existence?
Thomas: No, that’s, yeah, that’s not right.
Andrew: So here’s the definition that they use.
Thomas: Well can I also point out that every MIDI melody, that’s redundant. They might have used MIDI, MIDI stands for Musical Instrument Digital Interface.
Thomas: That’s just, like, when you are using electronic music, you know, MIDI is the-
Andrew: It’s the interf- it’s like the USB of, right?
Thomas: Yeah, yeah, essentially. You know, anything that I do, a lot of our Open Args song, for example, is MIDI. So it’s kind of redundant to say they wrote every MIDI melody, there’s no difference between writing a MIDI melody to copyright it versus I played these four notes on guitar and copyright it, they would be the same thing it’s just like MIDI is the format that it’s in.
Andrew: Okay, okay. We’re gonna talk about that in a second in terms of how that interfaces with copyright law, but here – so when we say-
Thomas: And also this is just bad writing!
Thomas: I’m sorry, this is Vice. Two programmer-musicians wrote every possible MIDI melody in existence. What does that? In existence. So they don’t exist. So they wrote ‘em, do they exist or not?
Andrew: [Laughs] Here’s the methodology.
Andrew: You tell me.
Andrew: (Quote) “To determine the finite nature of melodies,” and again, this writing is … interesting. “Riehl and Rubin developed an algorithm that recorded every possible 8-note, 12-beat melody combo.”
Thomas: Right. 12-beats. Okay.
Andrew: Now, 8-notes in an octave, right?
Andrew: What’s the 12-beat thing?
Thomas: Well, I mean, what I was saying to lead this off, and now I’m looking at the same article you are so we can be on the same page, but I wanted to know what the constraints would be, because obviously you have to set constraints on it because there are limits to computers. It would go out of control very, very, very quickly. I mean, just think about how many different melodies you could do with one note, in just the timing.
So it could be like [Singing] Duuuuuuuuh- so you could just have a note for the entire 12-beats. [Singing] Duuuh, two, three, four, one, two, three four. Like that would be one, and then you could have that [Singing] Duuuuuuh, except – and it also would matter how fine-grained they do? So how much they divide the beats in. Is it gonna be a 16th note, a 32nd note, a 64th note, a 128th note, because think about that. So you’d do one note – I’m just talking about the most basic. You could do one note for the entire time, twelve, and then once you get to ten, eleven, twelve, like on the very end you would have silence on the last 128th beat and that would be one melody.
This is, if they’re brute-forcing it, that may sound ridiculous, what I’m describing, but if you’re brute-forcing it that has to be part of it. Just think about how many difference combinations there are just with the most basic stuff. So, you know, I don’t know how fine grained they’re going on the beats. By the way, and again I agree with you that to determine the finite nature of melodies makes no sense.
To determine the finite-nature of – what? Do they mean, like, to constrain the melodies to a finite portion, is that what they’re trying to?
Andrew: Here’s … you tell me from a musical perspective, because from a law perspective here’s what I think it might mean. [Laughs] That is, if we have eight notes in an octave, we know from the George Harrison “My Sweet Lord,” The Chiffons “He’s So Fine,” that is shifted an octave or even a partial octave.
Thomas: Did we determine that? I can’t remember.
Andrew: I feel with a huge confidence interval that we did.
Thomas: So here’s what – okay, I’ll let you finish, sorry.
Andrew: So, okay.
Thomas: You think – is that in a different key?
Thomas: That’s not shifted an octave.
Andrew: Okay, I’m sorry, like I said, my musical stupidity is coming through loud and clear.
Thomas: Here, I’ll give you an example. So here’s a melody, now let me know [Laughs] Can we air me humming a few seconds of melodies, does that work?
Andrew: Yes, yes.
Thomas: Here’s a melody: [Singing Star Wars Theme] and I’m guessing what’s also copyrighted is [Singing Star Wars theme in higher key] and [Singing Star Wars Theme in higher key] you know, so just changing the key doesn’t get you out of the fact that it’s already Star Wars, kind of thing.
Andrew: Right, right.
Thomas: So that’s the “He’s So Fine,” may have been a different key.
Thomas: The part where it’s 8-notes in an octave, I’ll tell you where that comes into play. So that actually very much limits it. When they keep saying every possible melody, that’s not correct. There’s no possible way. I’ll give you a melody that’s one note different octaves, ready? [Singing My Sharona] Oh, okay, it might be two notes, but for the most part that’s just an octave [Singing] So if they’re only doing 8 notes they’re not going to have anything where it goes out of the octave.
Now, I don’t know in music copyright law if I were to take a song that goes out, you know, goes into multiple octaves which pretty much every song does, and if I were to crunch all of that down into one octave, now that I think about it, maybe that would still be copyrighted. Ooh, I dunno. Okay, I may be going back on myself here. I don’t know how copyright law works, that’s your field but if they kept everything within one octave does that still mean they’ve done melodies that go into multiple octaves even though they’re just crunching it down? I dunno.
Andrew: So here’s my thought process on that.
Thomas: But hold on! And I apologize.
Andrew: [Laughs] No, no no no! Yup.
Thomas: I’ve gotta say one more thing. Imagine if you – so there’s “My Sharona,” you’ve got the baseline that’s [Singing My Sharona]
Thomas: Imagine if I was like oh, well I already copyrighted that because here’s my song, it’s [Singing Monotone My Sharona] You’re like that’s not the same. Well, it’s crunched down to one octave.
Andrew: Okay. That’s interesting.
Andrew: I don’t know how to adjudicate that. I think the thought process is as follows:
Andrew: That if you have a limited universe of notes-
Andrew: Then, by definition, there are a finite amount of arrangements of those notes and clearly the-
Thomas: We can have the mathematicians decide if you go to 1/32, 1/64, 1/128. There is a limit to that but it gets darn near infinite when you divide up the beats to extreme degrees.
Thomas: But that aside.
Andrew: Okay, and look, I suspect – later in the same article the programmers say that the algorithm works at the rate of 300 thousand melodies per second.
Andrew: So we are talking about crunching, you know, an awful lot of melodies. I don’t think they were like-
Andrew: And by the way we ran the program for 8 seconds.
Andrew: Clearly there are millions, billions, trillions, quadrillions, whatever. Huge sums, huge numbers of these melodies. I think the idea is that the previous cases, the George Harrison case, the pending Led Zeppelin case which, again, we talk about episodes 236 and 288. They’re really, really a lot of fun.
Because small transformations have been held to be copyright violations, I think the idea is we get out sort of all the (quote) “basic melodies,” and once we do that then everything is a small transformation on that basic melody, we’ve copyrighted all of the basic melodies and then we’ve released them into the public domain, so therefore no copyright. I’m going to explain all of the legal problems with that chain of inferences in a moment, but I understand what you’re saying to be oh and by the way the factual predicate for that is just wrong, right?
Thomas: I think there are problems with it. Now that I’m re-reading this I think I would have to interpret this, and this may be me overthinking things, by the way, there are probably people saying Thomas, what are you talking about? I think I would interpret this, now that I’m re-reading it to be that they just did 12 notes, as in 12 whole notes. Which is not going to give you most melodies. Most melodies aren’t just on the note.
So if I’m going one, two, three, four, etcetera, counting to twelve, most melodies aren’t [Singing]. There’s more variation in the timing, in the rhythm. I think if I’m interpreting this right and it’s just based on this article, which is not written that well in my opinion, they’re saying 8-note, 12-beat melodies because if you went with what I was saying where, you know, you can subdivide a beat into any number. Songs will commonly have 16th notes at the very least, so each beat would have potentially 16 more sub-beats so to speak, as other places where you could either put notes or silence or whatever.
I think the only way this makes sense if it’s just one note per beat that they’re doing? But I really don’t know, that seems unclear to me.
Andrew: Okay, and it was [Laughs] I wish it were, for show purposes I wish it were more clear to you. For my awe of your musical knowledge I’m glad that it was as impenetrable to you as it was to me.
Andrew: Because I was worried that I was just an idiot, so- [Laughs]
Thomas: Well, I wanna add something else in here-
Andrew: And look, I am still an idiot so please-
Thomas: No no no no no. I wanna add something else in here, which is just melody – and this is gonna be where there’s my platonic ideal of how this law should work? And then there’s what you and I have discussed in the past which is the law is just – honestly, it’s kind of a conglomeration of case law where it seems to not make sense places and it’s not very consistent from my understanding of it. You can correct me if I’m wrong.
But when you talk about any great song, any great hit – now nowadays it’s getting simpler and simpler and that’s mathematically demonstrated, that’s not just me telling young people to get off my lawn-
Andrew: But I am behind you on crankiness! Anyway, keep going.
Thomas: [Laughs] But great music, it’s not just about the melody. [Singing] It’s not just about the main – it’s about the chords underneath it.
Andrew: Mine goes ding ding ding dinga ding ding!
Thomas: Yeah. [Laughs] Yeah [Singing Ice Ice Baby] It’s about the chords underneath it as well and the variations that you play. You can have a four-note sequence and have near infinite chord progressions underneath it, or I guess it’s technically finite but once you, you know, talk about timing, orchestration, any number of other variables you get into near-infinite possibilities just on one melody.
Now since we’re dealing with eight notes, I dunno if they picked that because they thought that would be the minimum copyrightable amount, but I think in the last music show we did it seemed like the last case to go the way we didn’t think it should go dealt with a very finite, what, three chords was it?
Thomas: So anyway, sorry if that’s-
Andrew: No, no no! That is, look, when this article came to my attention, if you follow us @openargs on Twitter, before looking into the law, just reading the headline my response was well, you know, let’s see about the feasibility of we’ve generated every single melody in existence and I strongly suspected no you didn’t. That seems to be, you know.
Thomas: But maybe the argument they’re making that you mentioned is if it’s in broad strokes, every possible 8-note, 12-beat, I’m not sure what they mean, but we’ll say 8 possible notes, and I would add also being resting, so silence should be a variable in there as well. It’s not like every melody is [Singing] Duuuh duuuh duuuh, because it pauses sometimes.
Anyway, they may be making the argument that it’ll be close enough to something. You may have an example that has more fine-tuning that has little timing issues, but it’s close enough to where everything could be looked at as a derivative melody. That’s up to, I guess, you to tell me if that all makes sense?
Thomas: Musically that kind of makes sense?
Andrew: Okay, so let’s assume that musically it makes sense.
Andrew: And I don’t want to discard what we’ve just done because I learned a lot from that and I suspect that it is more complicated than that. Let’s talk about the concept. I generate the minimum protectable copyrightable elements of every melody in existence, I then fix that to a medium, and here what they’ve done is they’ve put it on a hard drive in digital format, which is a totally valid way to register a copyright by the way. In fact, one of the requirements of copyright, we talked about this in the Led Zeppelin case, is an original work must be fixed in a permanent medium.
That made [Sighs] more sense back at the dawn of recorded time then it does now, but for example we have case law that basically says a live performance of a song – this came into play in the Led Zeppelin case because what was copyrighted of, it’s either the Spirit song “Taurus,” or – it’s the Taurus song “Spirit,” sorry.
Andrew: Took me a second.
Thomas: Yeah, yeah I can never remember, either way.
Andrew: Well, I should – P. Andrew Taurus.
Thomas: I think it’s “Taurus” by Spirit, right?
Andrew: Yes it is. It’s the Spirit.
Thomas: No wait. [Laughs]
Andrew: [Laughing] We’re never gonna get it right!
Thomas: I can’t remember. Either way!
Andrew: Yes. So the argument was, they wanted to play for the jury the live performance, which is what the members of Led Zeppelin had access to because they opened for Spirit, but what was copyrighted was the deposit version, which you played.
Andrew: The actual, physical written-down transcribed notes of the song, and part of the argument that was being made on appeal was well yeah, but what they heard when Spirit played it live was very different from the dry version that’s in the deposit.
Andrew: So in terms of the copying that took place, that was an evidentiary question. We’re not gonna revisit it for Led Zeppelin, go back and listen to episodes 288, 236, we go through all of this, but in terms of the question of can you get a computer to spit out (quote) “every possible melody,” subject to the discussion we just had, and then save it in a digital format and copyright that digital sequence? Yes, yes you can. That is considered fixation in a tangible medium, which is one of the requirements for copyright.
Then the issue is, think about what they’re trying to do. What they’re trying to do is to say look, now we’ve copyrighted all the other possible melodies so that means that the next time somebody comes along and writes a song and then somebody comes along after that and writes a song which artist A says infringes his earlier work, then artist B, who’s written the allegedly infringing song, will be able to go back and be like “no no no no, artist A you just stole one of the melodies from Riehl and Rubin.
Andrew: How do we know you stole one of the melodies from Riehl and Rubin? Because all melodies-
Thomas: We’ll pull it up on our database, yeah.
Andrew: Yeah. All melodies are real in Rubin databases. I want to tell you, this logic is not correct in copyright law.
Andrew: The concept is a concept called “prior art.” That is correct when it comes to trademark law, for example. So in other words, I can’t trademark an arrangement that is a previous arrangement that has been trademarked. Super obvious examples, I decide what really the law is about is getting more from your lawyer, so I want the symbol for the law offices of P. Andrew Torrez to be a giant M. A giant yellow M with curved peaks on a red background, because you get “More” from your lawyer.
Andrew: And you know, everybody would be like well that looks an awful lot like the golden arches of McDonald’s and I’d be like well, you know, it’s meant to be a big M. I’m sorry, yeah.
Thomas: For some reason I’m even hungrier to be your client!
Andrew: [Laughs] More for your money! Right, I can’t register that as my trademark because of the prior art that is the McDonald’s trademark that is already registered. In copyright it doesn’t quite work that way. Finding a previous version, even if it’s identical, does not automatically invalidate a copyright because here’s what has to go on:
In addition to fixing it in a tangible medium, to copyright an original expression you have to have those two elements. Number one, it must be an expression. We’ve talked about this before, you can’t copyright an idea. You can’t say “I wanna have a TV show where a shouty chef goes around to restaurants and brings in cameras and tells them that their food is terrible,” you can’t do that. That’s why there are multiple different – which I love dearly – shouty chef reality shows on TV.
You can, however, copyright the actual expression. You can say “we are copyrighting Gordon Ramsay’s Restaurant Makeover” and if somebody else wants to do a show they’ve gotta do it differently. They can use the same basic idea, but they can’t use the underlying copyrightable elements.
How do you know what those underlying elements are? That’s the other word. So in addition to expression, it must have originality. Then the question is how original is original? The answer to that threshold is pretty low. We’ve talked about what is the minimum – well there’s no bright line, but obviously playing an A-flat, you can’t protect A-flat, but can you protect a four note sequence. The law is sort of in flux as to what constitutes the minimum protectable elements from a song.
Okay, now if you put that together, the way in which prior art works in copyright is when you prove that somebody has not engaged in any originality in their work but they are merely copying the work of someone else.
Andrew: So I produce a novel and it begins “It was the best of times, it was the worst of times” and you’re like … okay, we’re super certain that you didn’t write that. [Laughs]
Andrew: It’s not hard to go out and find the original. So the fact that there is widely available prior art gives rise – and then the fact that I am word-for-word identical to Tale of Two Cities, you would look at that and go okay, um, I can’t prove that Andrew copied Tale of Two Cities, but we can draw a very, very strong inference-
Andrew: -which in civil law is sufficient to say yeah, Tale of Two Cities is publicly available.
Thomas: Yeah, every time if this came up it would be well obviously I haven’t heard your hard drive, right? Isn’t that part of it?
Andrew: That’s exactly right! In the music industry we have, and in fact again this goes back to the George Harrison. The argument was that in writing “My Sweet Lord” he unintentionally copied “He’s So Fine.” He didn’t intentionally, and George Harrison produced all sorts of documentation as to the work that went into it, and the argument was yeah, yeah, it’s still not original if you accidentally copy someone else.
The way in which prior art is relevant is it can prove that you’ve intentionally, you know, “it was the best of times, it was the worst of times,” or that it’s something that’s out there in the public consciousness, you’ve heard it, you subconsciously relied upon it and so, again, all of it goes into the question of did you make an original creation?
That gets to – it’s why I love doing this. The underlying question, which is could you have simultaneous or even asynchronous original creations that are nevertheless substantially similar? Could you on your own produce a melody that these guys have already previously produced without copying it? I think the answer really clearly is yes.
Thomas: Obviously yes.
Andrew: So think of some clear examples of this. Now, look, titles to songs, there’s clear case law. The title to a song itself is not independently copyrightable.
Andrew: And so I remember, because it was early in my childhood, when at the same time there were two separate songs both called “Learning to Fly” that were both in the top 10 at the same time.
Andrew: Yup, the Roger Waters-less David Gilmore-led Pink Floyd had a song called “Learning to Fly,” and Tom Petty had a song called “Learning to Fly,” and there have been subsequent songs called “Learning to Fly.” It’s not hard to figure out what happened there, which was both artists sat down and started writing and they both came up with “Learning to Fly” separately, there was no copying that went back and forth, so both songs were copyrightable.
Andrew: Ultimately at the end of the day there has never been a case of a copyright being granted where there is a word-for-word identical, or unit-for-unit identical prior representation, but there’s nothing in the law that prohibits is. The problem is just the more you have in common the stronger it gives rise to the inference that it was copying, either deliberate or accidental, but in this case given how artificial it is, they just ripped all of these to a hard drive and then sent the hard drive to the copyright office – by the way put a pin in that, I wanna talk about that in a second.
Thomas: I have a pin I’ve been sitting on, waiting to-
Andrew: Nice! Beautiful! [Laughs]
Thomas: We’re already a half hour.
Andrew: So there are zero cases in copyright where a copyright has been extended to something that is unit for unit identical to a previously published work, but there’s nothing in the copyright law that I can find that would prohibit recognition of such a copyright so long as it meets the originality requirement. Usually it is, again, the more you go “it was the best of times, it was the worst of times,” the more a jury’s gonna be like, well, come on, you ripped that off.
But here if you were the plaintiff you would have really, really strong evidence that you never ripped it off. This was published in a digital format that I never accessed and was filed with the copyright office, so I think it’s entirely possible that even if all of the factual predicates were correct that you would have the super unique situation of a subsequent artist independently creating something and being able to get a copyright even though there was a prior copyright that contained the exact same elements. It would be super fascinating.
It’s not gonna happen because also, by the way, I think it’s unlikely that the copyright office is going to recognize this copyright.
Thomas: Yeah, wouldn’t they have to file each and every one of the ten-dy-billion melodies?
Andrew: No. Here’s what they’re gonna say. They’re gonna say that the entire work is one copyright containing ten to the 38th power independent separate copyrightable elements.
Andrew: You don’t have to separately copyright-
Andrew: -you know, all of the catchphrases on your TV show.
Andrew: The copyright includes the independently copyrightable material within it, that’s why I can’t have a wizard named Dumbledore in my special new novel that I’m writing called “Definitely Not Harry Potter.”
Andrew: So that’s what they’re gonna claim, but I don’t know that they will get a copyright on the computer-generation of all of the melodies because I don’t know that that is going to meet the originality requirement.
Andrew: The reason for that goes back to the fundamental case that underlies really all of copyright, it’s the place you start when you analyze a copyright question, we’ve talked about it on the air before. It’s a case called Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340 from 1991, which says that the telephone numbers are not copyrightable within a telephone directory. Those are just facts, and even when you say like oh, I had some minimum creativity because I organized them alphabetically, the Supreme Court was like no no no no no.
Thomas: Oh, that’s a lot more like that!
Thomas: This sounds like that example.
Andrew: It sounds exactly like that to me.
Andrew: If an old phone book-
Thomas: But if you make a song called 867-5309! Ha ha!
Andrew: Well, one of the greatest songs of all times, obviously.
Thomas: Exactly! Then you’ve just copyrighted yourself a telephone number!
Thomas: Bring it all together!
Andrew: There you go.
Andrew: So here’s the summary. Number one, from you it’s definitely not every melody ever.
Thomas: Well, let me- I’ve been sittin’ on this for this entire time because, okay, I’m now – I’ve put this article through the somebody who’s not a musician wrote this filter, and now what I’m seeing is they should not have said “12-beat.” They should’ve just said they’re doing every 12-note sequence for 8-notes, that’s what they’re doing. That would ignore, you know, my “My Sharona” example, so instead of [Singing My Sharona Melody] that would just be [Monotone singing] duh duh duh duh duh dup dup, which I would be interested. I would doubt a court would say that’s a ripoff, because it’s kind of critical that you jump octaves there.
Also, I was looking at – I don’t know if they include a silent beat, but if they don’t I guess you wouldn’t necessarily have to because like say your melody is like [Singing] “Hey Jude,” you know, and then they’re like “well we had this one in our database, it goes [Singing] Dun Dunnnnnnnnn” and holds it forever I guess that would be close enough you know?
Thomas: I don’t know, but anyway, let’s assume if they do have a silent note that gives us 2.82 to the 11th power and that would take 10.89 days at their rate, so that’s still very achievable if they only use the 8 notes and not like a rest, then it would only take them 2.65 days to do this.
Again, I wanna emphasize, that’s only 8-notes, 12-sequences. So that’s just, unless I’m failing at my basic math, that’s just 8 to the 12th power or whatever, or sorry was it 12 to the 8th? I already forget which I did.
Andrew: Either way that’s not a lot.
Thomas: So that’s far more simple.
Thomas: Yeah, it’s far more simple then like if you have an 8th note or a 16th note or even a half note or whatever, it’s greatly, greatly simplifying what music is and that’s just a side note. But I’m really glad to hear that in addition to those constraints, the law might actually, you know, be smart for one and be like okay, this is stupid, clearly you didn’t write every song.
I also wanna say, and this is – you know, I don’t have my guitar on me or whatever, but when we talk about “He’s So Fine” versus “My Sweet Lord,” yes on paper the melody that he is singing or The Chiffon’s is singing is [Singing] Duh duh duh. Like that’s it. You know that’s [Singing] Duh nah nah. You know, a handful of notes.
Thomas: It’s almost nothing, and that’s what would be in the computer program, but what makes those songs so clearly – or rather what makes George Harrison’s song, in my opinion, so clearly a rip-off that he accidentally did, I don’t think he did it intentionally just one of those things where he probably had it in his head somewhere because, you know, he was touring for years and hearing music and all that, is it’s the same chords too.
It’s an A-minor and a D, and it’s the timing of how it’s sung, it’s the phrasing of it that really give you those indications that like, okay, the jury’s opinion and in my opinion too, this does sound like he accidentally ripped this off versus if you just plug this into the computer, the hard drive that they’re saving all these on, it would just be [Singing robot voice] dun dun dunt. It’s like, that’s not really the same, you know what I mean?
Thomas: There’s more going on, you could have any number of chords underneath that melody and it would sound to you, and to anyone, like a completely different song. It’s not just the simple melody that makes songs, it’s also the chords, the expression, the instrument, the everything.
Andrew: I agree with all of that and I think that provides even better levels, layers of details on the “this doesn’t cover the universe of protectable stuff.” But even if it did, and even if it were copyrightable in that format which I’m not sure that it is, it would not accomplish the things that they’re trying to accomplish. Look, I’m very happy that the story is out there and that we’re able to cover it.
Thomas: Yeah. Well it sounds like they were just kind of messing around and doing an interesting thing.
Thomas: I don’t have any problem with that.
Andrew: And look, again these folks are programmer-musicians so, you know, don’t take legal advice from them! There’s a little bit in the article, [Laughing] I wanna read from Riehl where he says “under copyright law numbers are facts.” Eeeh, again, 867-5309, right?
Andrew: “And under copyright law facts either have thin copyright, almost no copyright, or no copyright at all, so maybe if these numbers have existed since the beginning of time and we’re just plucking them out, maybe melodies are just math, which is just facts, which is not copyrightable,” … Which is insane! That is not – no. No, don’t take legal advice from him.
Thomas: Well, I’m trying to interpret that a little more charitably and that sounds like the telephone book example to me. Like oh if this is just combinations of numbers, essentially, that are out there, us rearranging the telephone book isn’t really copyrightable.
Thomas: But maybe I’m being too charitable to what he’s saying.
Andrew: But replace numbers with letters and now no books are copyright- because what are words?
Thomas: Oh, that’s a good point.
Andrew: Words are just a rearrangement of preexisting letters. No.
Thomas: And the letters are … numbers?
Andrew: Right. And you can put letters as numbers.
Thomas: [Laughs] Everything’s 1’s and 0’s, really!
Andrew: Yeah, right! The reason in Feist Publications that the phone book wasn’t protectable in and of itself is because the arrangement of the core facts was not sufficiently creative. It was just oh we did this alphabetically.
Thomas: Oh, okay.
Andrew: Well and I’m sorry, arranging facts alphabetically is not sufficient.
Andrew: But look, here’s a real world example. Almanacs absolutely 100% are copyrightable.
Andrew: I don’t know that anybody uses almanacs anymore.
Andrew: But if you went out and took an almanac and just ripped off the cover and put a brand new cover on it and tried to resale it, then the almanac company would absolutely 100% sue you because it just contains facts but it’s the arrangement of those facts in a creative way that makes the almanac the almanac.
Andrew: That’s the fundamental mistake with the idea that facts have very little copyright protection in and of themselves. That’s true, okay, but it’s the arrangement of facts that then gains protection.
Andrew: And the fact that we can all recognize that music, even if the underlying notes are not individually protectable, the creativity is in the arrangement and that’s not going away.
Thomas: Yeah, I like that there needs to be a creative element. So if they just plucked at random and took 10 of these melodies and then did something with them and made an album out of it then all of a sudden, yeah, there you go.
Andrew: Agreed. So to summarize, number one this isn’t all of the protectable elements. Number two, it’s probably not copyrightable. Number three, even if it was this isn’t gonna do what they think it does. But number four, we want to have a debate about what 21st Century copyright protection looks like because there is no doubt that we are trying to shoehorn modern concepts into a very, very old law. Even the joke that I just made, the letters are really just numbers, are ASCII numbers which in turn are just 1’s and 0’s-
Andrew: That joke would’ve made no sense at the time the copyright law was drafted.
Andrew: Because there wasn’t digital, so there is no doubt in my mind that copyright law is a robust area that needs revisiting, but this, while sparking the discussion, isn’t gonna do that.
Thomas: Yeah, fun conversation starter. Alright, well it led us to use up most of our episode on this, sorry.
Thomas: Just, if we’re talking music law it’s so fun for me, I’m really interested in it.
Andrew: I love it!
Thomas: But we’ve got to talk about what, I guess, is now our quote-unquote “main segment.”
Andrew: [Laughs] We’ll go quickly!
Thomas: Which is Clarence Thomas.
[Commercial – echelonfit.com/opening]
Clarence Thomas cites Thomas in Overruling Thomas
Thomas: So I saw, I actually saw this in an email – to us, by the way – it was titled “Thomas weirdness” and I was like oh, great, another comment on my appearance about our YouTube videos. Then I was pleased to discover-
Thomas: Actually wasn’t me.
Andrew: A different Thomas was weird.
Thomas: I’m so vain that I thought this email was about me.
Thomas: It’s about Clarence Thomas. So what happened?
Andrew: Yeah, the headline I saw – this is actually a Fox News headline and give them credit because this was funny!
Thomas: Wow, yeah.
Andrew: It was “Thomas cites Thomas in arguing to overturn decision authored by Thomas.”
Andrew: For the first time ever on this show, I am going to tell you Fox News got that 100% correct.
Andrew: This should be terrifying and not hilarious, so let’s have our joke, our laugh at the joke, and then I will tell you why this is scary.
So this was a case called Baldwin v. United States decided by the 9th Circuit. There was a petition for cert to the U.S. Supreme Court, that was denied, cert petitions are routinely denied without comment so we don’t know how many votes there were for certain, we know that it only requires four. That’s the longstanding rule. Even if Justice Roberts didn’t want a part of this, if the howler monkey contingent did they absolutely could have granted cert in this case.
I will tell you in a minute why the smarter members of the howler monkey contingent did not want to grant cert in this case, but Clarence Thomas definitely did and wrote an 11-page dissent as to why the court should have granted certiorari in this case.
The reason is because the sole issue in Baldwin v. U.S. that was presented to the Supreme Court on appeal was that the Supreme Court should reverse its prior decision in a case called Brand X in a case, full title National Cable & Telecommunications Asso’n v. Brand X Internet Svcs., 545 U.S. 967 from 2005. So Baldwin says Supreme Court, I want you to grant cert in this case to overturn Brand X and the Supreme Court says no, we’re not taking this case. Thomas writes a dissent to say Brand X is one of the worst decisions that the Supreme Court has ever issued.
By the way, (quote) “Although I authored Brand X” [Laughs] then, internal quote, “it is never too late to surrender former views to better considered position.” (End of quote).
Andrew: That internal quote was from a case called South Dakota v. Wayfair from 2018, and to a concurrence, written by …. Clarence Thomas.
Thomas: [Laughs] Cool.
Andrew: So yes, in fact –
Thomas: Just tell us what you think! I don’t need you to cite yourself about yourself.
Andrew: But look, that is Clarence Thomas starting to give the game away.
Andrew: Of yeah yeah yeah, I used to have a veneer of pretending like stare decisis matters and I don’t anymore. Doesn’t matter what I wrote, doesn’t matter when I wrote it, doesn’t matter literally if I was the lead author on the opinion-
Andrew: Everything’s up for grabs if we can make society more terrible.
Thomas: It sounds like he wants a result, a certain result, and he’s gonna literally [Laughs] just tear through his own opinions to get there, is that what’s happening?
Andrew: And if you ask, what is this Brand X opinion that Clarence Thomas is so keen to get rid of? A lot of people have been distracted by the fact that it was relevant to net neutrality and relied upon by Ajit Pai. It has absolutely nothing to do with the subject matter of the underlying Brand X opinion. What it has to do with is Brand X is an opinion that extends part of Chevron Deference.
So let’s go back, this remains an important hobbyhorse on this show, I wanna give 30 seconds of what Chevron Deference is and why it is super important that this is the goal of the Supreme Court right now. Chevron Deference will be torn down within the next term and here’s why it is going to make your life as a listener to this show materially worse, okay?
Thomas: Just … please tell me that the Brand X case involves Batman from 1989?
Andrew: I totally wish it did!
Thomas: Jack Nicholson is like “looks like he took Brand X!” Remember that?
Andrew: [Laughs] That’s such a great reference!
Thomas: I love that movie.
Andrew: I do too, but that’s the last time you’re gonna be happy in this segment.
Thomas: Oh, okay. [Laughs] I’m glad I made the reference!
Andrew: Me too! So here’s why the Supreme Court wants to gut Chevron Deference. Because conservatives control the judiciary and they have broken the legislature. Chevron Deference says when a statute – that is a law passed by Congress is ambiguous. So long as the agency’s interpretation of that law is reasonable, courts must differ to that interpretation.
Now if a statute is unambiguous, if Congress is super clear about what they want an executive agency to do and the executive agency does something else, then courts come in and go no no no no no! We don’t care about your interpretation, you have to follow what Congress said, but where Congress isn’t clear then the courts are not supposed to insert their own judgment over the agency’s judgment.
Here’s why that matters, and this comes up. Thomas, you and I actually had this conversation after the last Democratic debate in which the question of abolishing the filibuster came up and I was rather surprised to see Warren and Buttigieg on one side and everybody else on the other, especially Bernie Sanders who very clearly needs to abolish the filibuster to get anything done!
A lot of folks who then wrote in on our Facebook page when I asked that question, hey, look if you’re a Sanders supporter talk to me about why you think this is because it seems odd that the person who has the proposals that are least likely to gain bipartisan support would want a mechanism in place that would require them to have bipartisan support.
Thomas: Can I take seven seconds to be mad? Normally I love Vox but I’m really mad that Vox wrote an article saying “Bernie’s gonna get rid of the filibuster!” and then you read it and it’s actually not that?
Thomas: So everybody keep citing that article to you – and to me, by the way – as an example of like, oh no you dummy, Bernie’s gonna get rid of the filibuster, and it’s like “but I actually read the article and it doesn’t say that!”
Thomas: It says he’s gonna use budget reconciliation to kind of get around it, which is not the same thing!
Thomas: Sorry, rant over.
Andrew: No no no, important rant and we can talk about the ability or lack thereof to use budget reconciliation, I’m glad you pointed it out. I just wanted to point out that in that debate one of the things that was advanced was a sort of “well look, no President, filibuster or not, is really gonna get much done legislatively” and look, their at least gonna be able to use executive actions, executive orders, staff executive agencies and change policies administratively.
And I understand why people think that, because when we went from George W. Bush to Obama and then Obama to Trump, that’s what happened. Obama directed the military to admit trans service members, Trump says no. Obama says we increase the salary minimum necessary for exempt employees to not be paid overtime and Trump reverses that, Obama says net neutrality and Trump reverses it. So there’s this sense that okay, Trump did all of this stuff administratively through executive orders, so Elizabeth Warren or Bernie Sanders or whomever is just gonna come in January 2021 and undo all of it, that’s where we are now.
Andrew: Getting rid of Chevron Deference – and again, I can’t say this slowly, loudly, or repeated enough. The reason the right wants to get rid of Chevron Deference is because they’ve stacked the court with right wing activists and they want the court to be able to come in and substitute their judgment over the administrative agency’s judgment. They want their court to be able to come in and be like “oh no, I’m sorry, in the old rules under Chevron Deference yeah, Donald Trump was able to do X, Y, and Z, but you can’t undo that President Warren, because you’ve exceeded the authority the legislature meant to give you as interpreted by us, a right wing judiciary.” That’s the point.
The reason to substitute their own judgment is they can leave intact – they get ultimate review.
Thomas: Is it fair to say that they kinda lucked into this? Because haven’t they been trying to get rid of this for a while just because of Obama essentially and then maybe they’ve even lucked into the timing of well, we got Trump in there to do our bidding for a while and then we can slam the door behind him!
Andrew: Exactly, exactly right.
Thomas: Uck, wow.
Andrew: Look, it started as a project of the extreme right, which is now the mainstream right.
Thomas: [Scoffs] Yeah.
Andrew: Because remember, their governing ideology is that government doesn’t work. So the more you can hamstring government by allowing judges to insert their own interpretation of statutes de novo, that is with zero deference to the administrative agency’s review of statutes, the more lawsuits you can bring, the more you can clog up the courts, the more you can get injunctions stopping agencies from doing stuff and the more that plays into their argument that government’s broken.
The idea is you have a major political party who’s ideology is that government is broken, and in service of that ideology they are out there trying to break government. Getting rid of Chevron Deference is one of the ways of trying to break government.
All of that is in the background. [Laughs] Sorry, we’re not even to this specific Baldwin case yet. Now we need to go from Chevron, which again, 1984 conservative opinion upholding a conservative decision by Ronald Reagan’s EPA, but it’s not good enough for the tear it all down folks, so they’ve been agitating to get rid of Chevron Deference for about a decade, we now have a Supreme Court that is poised to do that.
Brand X interprets Chevron Deference. It’s a subset. It says if there is a prior judicial construction of a statute that interpretation only trumps the agency’s own construction of the statute if that prior court opinion holds that its construction flows from the unambiguous terms of the statute that leaves no room for any discretion.
Let me unpack that out of legalese just a little bit. It says in 2000, or in fact let’s use the case that’s actually in Baldwin. In 1992 if there’s a court opinion that says this statute means X and then let’s say 20 years later, 2011, there is an internal agency regulation that says no, it actually means Y, then Chevron Deference says we should defer to the agency’s interpretation and not the court’s interpretation, even though the court’s interpretation came first. Brand X says yup, that’s right, unless the court opinion says oh and by the way this statute means X and couldn’t possibly mean anything other than X. Does that make sense? [Laughs]
Thomas: It makes sense in what way? [Laughs]
Andrew: Did you follow that?
Thomas: I get the break down, but it’s not- okay.
Andrew: Yeah. So Brand X is a way of closing – it’s the contrapositive. It’s the way of closing the loophole on Chevron Deference that says even if there’s a prior court opinion, unless that court opinion says this statute is unambiguous, because remember Chevron Deference only applies when the statute is ambiguous-
Andrew: Unless it says that then yeah, the court’s prior opinion doesn’t constrain the agencies from doing something else.
That brings us to Mr. Baldwin. In short, what happened here is there was a prior Supreme Court opinion about how you can file your request for a tax refund, okay? That prior Supreme Court opinion had to do with a 13th Century Saxony law provision called the mailbox rule. It said even if you are declared by the agency to have not been timely, if you can convince a court that you stuck it in the mailbox at the right time then you get to go and make that argument at least.
Andrew: The IRS later added a provision that said look, when we’re interpreting what counts as being timely, we are going to look to the actual stamp on your mail, the actual date that is on the stamp if you send it via regular mail, or the date that is printed when you send it via certified or registered mail. Because imagine you can say “well I put it in the mailbox but it didn’t get a stamp, it didn’t get that cancellation stamp with the date on it for the next day because the truck didn’t come that day or it stuck to the roof of the mailbox, whatever.” There are lots of reasons why, under the old mailbox rule, you could go in and argue yeah, I get it, it doesn’t say July 1, the deadline was July 1, but I promise I put it in the box on July 1.
Under the old mailbox rule you were free to argue that. Under the new IRS regs they’re like “come on,” it was 2012 at the time, they’re like look-
Thomas: [Laughs] Wake up! It’s 2012 everyone!
Andrew: Right, yeah.
Thomas: But also how does this apply to laws? They put the law in the mailbox?
Andrew: They put their request-
Thomas: They put the lime in the coconut?
Andrew: [Laughs] The lime in the coconut, yes! This was a question of what counts as a timely request for a refund. Baldwin, Howard L. Baldwin, no relation to the Baldwins, argues that he stuck his request for a tax refund in the mailbox at the right time.
Andrew: Now, he then says okay, in fairness I addressed it to the wrong department of the IRS at the wrong address.
Thomas: Oh it came back or something?
Andrew: Yeah, so it never got there and blah blah blah.
Andrew: And I get that the IRS regs say that I had to send it by certified mail to the proper place, but if you look by this old opinion from 1992 called Anderson I would be able to make this argument, and I wanna make this argument so I’m asking the courts to overrule Brand X, to say no, prior judicial opinions constrain an executive agency from creating new regulations to the contrary. That’s a crazy, crazy argument.
Thomas: This must have been a hell of a refund for this guy to do all this-
Andrew: Yeah. [Laughs]
Thomas: -litigation and have this complex argument that I can barely even understand?
Thomas: Wow, okay, he must’ve really wanted that refund.
Andrew: He must have. So his argument is overturn Brand X.
Andrew: And the 9th Circuit was like “well, we’re the 9th Circuit, not the Supreme Court, we’re not gonna overturn Brand X.” And the Supreme Court said-
Andrew: You know what? We’re not gonna overturn Brand X either. You might ask yourself, why not? If they’re so bent on overturning Chevron Deference, why not take this case, overturn Brand X? The answer is this case is so bad on its facts that Noel Francisco, the U.S. Solicitor General from the Trump administration, who very desperately wants the Supreme Court to overturnChevron Deference, wrote a brief in opposition and was like “look, this would be a super bad case for you guys to take because the plaintiff doesn’t even want you to overturn Chevron Deference in this case.” This is a bad one, wait ‘til a good one comes along and then do that.
If you think I’m just sort of attributing conspiracy theories here, this is page 18-19 of the actual brief in opposition filed by the Trump administration:
“Petitioners contend that this court should grant review to overrule Brand X. No sound reason exists to revisit Brand X in this case. As this court recognized in Brand X itself, the rule the court adopted there (quote) ‘follows from Chevron.’ Petitioners have not asked this court to overrule Chevron, and this case is not a suitable vehicle for considering that step. As long as Chevron remains the law it would make little sense for a Court of Appeals to decline to give effect to an agency regulation that is otherwise entitled to deference simply because a prior panel of the same court had interpreted an ambiguous statute differently before the regulation was promulgated.”
So that’s a pretty clear, like, don’t say the quiet part loud, guys!
Andrew: And Clarence Thomas did not get that message and instead shouted the quiet part from the rooftops which is, you know, what Clarence Thomas is wont to do.
Thomas: Well at least he was talking.
Andrew: [Laughing] Yeah! Right. So yeah, that is the case, that is why the other less stupid members of the Supreme Court, even though they desperately want to overrule Chevron, nodded along and were like okay, well we’re just gonna have to wait for the right vehicle to overrule Chevron. It’s coming, let us not take this one because when this one gets up here we realize that the facts are gonna look so bad that it’s gonna make it tough for us to do the thing that our conservative overlords want us to do and they put that in print.
Thomas: Which I find encouraging that there’s still some constraints on these people, you know?
Thomas: I think Clarence Thomas is sitting there like hey, guys, there’s no consequences for anything! Just do… whatever.
Andrew: Yes! That is 100% what Clarence Thomas is thinking and everybody else is like …. Yeah, we’re not there yet.
Thomas: They kinda care about their legacy a little bit, I guess?
Andrew: Yeah, John Roberts obviously does, and you know, we’ll see to what extent any of the others do, but yeah, Clarence Thomas is a hack and he’s made it clear that he is willing to be a hack in print and that is why it is okay to laugh at “Thomas Cites Thomas to Overrule Thomas.”
Thomas: Ha ha!
Andrew: But the underlying case is certainly no laughing matter.
Thomas: Well and we’re – just a matter of time until there’s another one, right?
Thomas: That they find better. Alright, uh, I think we maybe used up our Wild Card Segment time, what do you think?
Andrew: Yeah, I have a really, really wonderful letter that relates to law school admissions and I know that is super important to folks right now. We’ve gotta push it off, but make sure you listen to Friday’s show.
Thomas: Yeah, we’ll get to it! But it was worthwhile to cover the music story in depth because that was super fun and interesting and also Thomas being- Clarence Thomas being the worst! So lots of good stuff.
Andrew: [Laughing] Yeah, not that Thomas!
Thomas: Hey, that’s what makes it a Wild Card Segment, you can’t know one way or the other, we can’t always miss it or always hit it, it’s a wildcard! Pretty cool. Okay, we’ve gotta thank our top patrons, our hall of famers, on patreon.com/law here on Top Patron Tuesday and I think I’m starting us out!
[Patron Shout Outs]
Thomas: Hoo! Alright, well all those fine Hall of Fame Patrons bring us this T3BE Answer!
T3BE – Answer
Thomas: Eugh, what happened here?
Andrew: Yeah! So this was a state law that was passed making it a criminal offense for any state employee to knowingly provide educational services or extend welfare benefits to a foreign national here outside of legal status. Principal of a public elementary school was prosecuted under the law for enrolling and providing education to foreign nationals outside of legal status. All of those actions took place before the new law was adopted, no federal law applied to the principal’s actions, what constitutional provision would be most helpful?
You looked at it and was like, well, that seems like ex post facto, right? That’s the ex post facto clause of Article 1 Section 10; answer C and, uh, I’m not gonna pussyfoot around. Yes, of course it’s ex post facto!
Thomas: Right, okay. Well I’m a little punchy after that last question because that was a really, really tough last question and this was like well this seems incredibly easy, what am I missing? But sometimes, that’s why I stick with my plan! I choose the logical easy answer and its getting me 55-ish percent, so, you know.
Andrew: Yeah! And-
Thomas: Working okay. It’s not always right.
Andrew: That’s true! [Laughs]
Andrew: Yeah, ex post facto by far the best answer here, we could work through – there’s an okay argument on due process, because obviously if it’s ex post facto-
Andrew: -you’re not getting due process, that was your second choice answer, but the question was most helpful so the fact that you could make a due process argument, a court would be like probably but its super duper a violation of Article 1 Section 10.
Equal protection not a good argument because although there is a classification there’s not an inherently suspect classification going on and privileges and immunities clause is just sort of right out Supreme Court precedent. I’m gonna quote from the answer key here: “Limits the protections of the privileges or immunities clause of the 14th Amendment to a handful of rights especially associated with national citizenship, none of which are applicable in this case.”
Thomas: Ah. So if you knew enough to know that it applied to the people he’s trying to help?
Andrew: [Laughing] Right!
Thomas: Or something, but yeah.
Andrew: Yeah, no, this is one of those that is just trying to mess with you by being obvious and straightforward.
Andrew: You didn’t let it mess with you. Good work!
Thomas: No I didn’t. Well there you have it! Alright, back on the saddle. Let’s hop in the time machine and find out who our big winner was this week!
Andrew: Yeah and I am gonna look for somebody who gets this wrong for the most creative reason. We’ll see if we can put them here.
Andrew: Well Thomas, this week’s winner is Stormy Decisis, our old pal, who says “I think it’s B. Public education is guaranteed by residency, not by documentation. The law was unconstitutional to begin with.”
I think Stormy was the only person really to overthink this question out there and I love it and every once in a while we pick an incredibly well-meaning and well-reasoned thought process as a winner even though it’s the wrong answer. This time it is longstanding friend of the show, Stormy Decisis. Everyone should follow them, that is @NezumiPi on Twitter, and congratulations on being this weeks (quote) “winner.”
Thomas: Alright, thanks so much for listening, we will see you for Rapid Response Friday, see you then!