Topics of Discussion:
- Listener Question: More Factors to Consider When Choosing which Law School to Go To
- Music Law Part 2: Interview with Damien Riehl and Noah Rubin
- T3BE – Answer
Thomas: Hello and welcome to Opening Arguments, this is episode 367. I’m Thomas Smith, that’s P. Andrew Tortoise, how ya doin?
Andrew: [Laughs] [Turtle Impression] Welll I’mmmm doin finnne Thommmas.
Andrew: How are you?
Thomas: Well, you know.
Andrew: I do.
Thomas: Doin’ okay. [Laughs]
Andrew: I do. But I’m excited about today’s episode!
Thomas: I am excited about today’s episode as well, it’s gonna be so fun to talk to the two gentlemen behind the music algorithm, the every melody ever, really interesting stuff. So that’ll be fun. Before we get to that though, Andrew, I know we wanted to tackle a listener question, so why don’t we do that. Wild card segments, yes they sometimes go to a graveyard and just drift away-
Thomas: But other times they, you know, haunt us like a poltergeist and we then answer them later.
Thomas: So that’s what’s happening here, an old wild card segment you wanted to get to, it’s a great listener question, hit it Brian.
Listener Question: More Factors to Consider When Choosing which Law School to Go To
Thomas: So Andrew, what is our listener question today?
Andrew: Yeah, this I thought is incredibly timely, it is March, people are thinking about making law school decisions. I know we have a bunch of prospective law students. This came from a current 1L at a T14 law school, and I should say that T14, that’s shorthand for “top 14,” that is Harvard, Yale, Stanford are the undisputed top 3, and then the other 11 schools in various order are Chicago, Columbia, Penn, NYU, UVA, Michigan at Ann Arbor, Berkley, Northwestern, Cornell, Duke, and Georgetown. They are kind of roughly grouped into that T14 designation and carry cachet, carry prestige.
So I thought this was an incredibly interesting letter and I just wanted to share it with our listeners because I know we have a lot of folks who are thinking about law school and I wanted to share the perspective. This listener says: “Listening to your last episode” – The last time we talked about law school admissions and I said, essentially, make sure you know what you’re getting into, it’s potentially a lot of debt and don’t wind up like me where you get funneled in to big law practice. If you want big law practice, great, but don’t accidentally get thrown in because you don’t really know what’s going on, that was sort of my takeaway message.
This listener says “I thought the financial advice you gave was not quite as on point as some of your other analyses. Going into law school applications I did not know what the T14 was and I only applied to 4 schools total. I ended up getting into all of them. I’ve always been interested in environmental law, I never really took prestige into account in making life decisions. But when deciding between two schools ranked highly in my chosen field with a lot of scholarships and two T14s with less scholarship, I decided it was time to bite the bullet and go into debt.
I know this will be different for everyone, but even going to these lower rank schools with a complete scholarship I would still have to pay for all my living expenses, which would mean some debt.”
Let me do another little sidebar here. Just to be clear, my point was not don’t go into debt for law school, and [Laughing] it definitely was not – I mean I would be pretty hypocritical if I was saying don’t go into debt for a top-tier law school. That would be a pretty silly thing for a Harvard grad to say. My point was and is to know what you’re getting into.
Andrew: But I thought this next part really deserved highlighting because I have not talked about this in terms of scholarships and this is really – all of it, I think, is useful, but this is the part I really wanted to make sure I read.
“Another thing I didn’t realize, but know now, is that one of those offers from a lower ranked school was a conditional scholarship, meaning that I would have to maintain a certain GPA to keep the scholarship. While that didn’t seem daunting to me, some institutions place all the people with scholarships in the same section, meaning they have to fight each other to get a place on the curve to keep their scholarship and guarantees-
Thomas: Oh wow!
Andrew: -that the school doesn’t have to pay out all that money for all three years.”
Thomas: Geez! That’s some … dirty tricks.
Andrew: I can’t verify that independently.
Thomas: Hmm, okay.
Andrew: But what I can say is- and different schools have different conceptions of whether there is a grading curve-
Andrew: -and where that models. That data is publicly available, you can track it. So for example, we know that historically University of Chicago’s grading curve tends to be lower than other schools. That’s true undergrad, it’s true for their law school, that data is publicly available. My takeaway there is not law schools are or are not out to screw you out of your scholarship, but is, number one, know the conditions of your scholarship and have access to the data, know whether this is conditional, unconditional, whatever.
Then this person adds: “Also, law school is hard and I have enough to stress about without worrying that I’ll lose my scholarship.” That’s a good point, it really is. Listener continues, “Most, maybe all, T14s have the loan forgiveness program you were discussing, but at least at my school it’s called LRAP, the Loan Repayment Assistance Program. They’ll help make loan payments up to a certain salary which varies by school, and in some cases isn’t exceedingly generous.
My school’s is very generous, making your payments for you up until you earn $100,000 a year. But some schools put limits, like not qualifying for clerkships.” I’m gonna cut- there’s a discussion about how that interacts with the Public Service Loan Forgiveness Program, and the punchline on PSLF is that there is a less than 1% success rate of people qualifying for loan forgiveness under PSLF, and Trump and the Republicans keep trying to gut it. So I certainly agree with you that from a political standpoint, it’s almost as if this should be a campaign issue on how to make college and post-collegiate education more affordable.
So yes, but let me go back to the conclusion. “Overall, law school is massively expensive and it’s good to know that going in. Going to a less expensive school may be a good option for some, but you still have to be careful, and as much as I hate it I do get better opportunities going to the brand name school.”
Another thing I didn’t know is first year salaries, particularly in the part of the country that this person is in. The first year salaries are six figure salaries, and even a summer associate position, some of the offers this person got were as high as $40,000 for the summer! That was more than I made as a summer associate, but it is a good point. I am not saying that you don’t increase your earning potential, I am not saying that you can’t take that and then maybe pay off a chunk with what you’ve earned as a summer associate.
I just thought all of this was a really good balance to the perspective. It doesn’t change my underlying point, which is I don’t wanna hear stories of people being blindsided the way I was, but I wanted to share that with everyone, so there you go.
Thomas: Well there you have it! Wild card segment accomplished, Andrew! Eventually. Good job! [Laughs]
Andrew: Eventually is a fair criticism there. [Laughs]
Thomas: Alright, great question and great answer Andrew. Let’s hop on the line, though, with Damien Riehl and Noah Rubin and we are going to talk about algorithmically generating every possible melody and hear it straight from the horses mouth, so why don’t we grab them on Skype!
Music Law Part 2: Interview with Damien Riehl and Noah Rubin
Thomas: We are joined by Damien Riehl and Noah Rubin, I hope I pronounce your names correctly. Welcome gentlemen!
Damien: Thanks, and Riehl is correct.
Thomas: Cool! So we covered the Vice write-up of your project last week, why don’t we go ahead because in my opinion that was a little bit confusingly written, so why don’t we go ahead and do a reset. Why don’t you give, if you don’t mind, the short version of the project, why you went about it, that kind of stuff just to keep everyone up to speed?
Damien: Sure, I can start and Noah can catch in, this is Damien Riehl. So what we thought about is Noah and I were involved in cybersecurity and I’ve been a lawyer since 2002, been a coder since ’85, for the web since ’95, so as a tech lawyer musician who has a bachelor’s degree in music I was thinking a few years ago, I thought what if, much like you can brute-force a password – brute-forcing a password is “AAA,” “AAB,” “AAC,” until it guesses your password – I thought what if we could do that with music? I thought what if we could go [Singing] do-do-do-do, do-do-do-re, do-do-do-me, until we mathematically exhausted both every melody that has ever been and every melody that can ever be, mathematically. So exhausting the entire possibility of the melodic data set.
So during an engagement, a cybersecurity engagement that Noah and I were on onsite, we finished a very long day and went back to our hotel and in the lounge we were discussing the possibility of this. I said “Noah, do you think you could brute-force passwords?” and Noah answered affirmatively.
Noah: My answer, I think, explicitly “yeah, sure, I’ll give it a shot. Why not?”
Damien: He’s a really smart dude. So initially it started out as a thought experiment, we thought wouldn’t it be interesting to be able to do this. I’ve taught copyright law at a local law school and I practiced litigation in copyright law, and I knew that to be actually effective it has to be in a fixed, tangible medium. We thought about the ways that we would actually put it into a fixed, tangible medium to be copyrightable – at least arguably copyrightable – but then as we started thinking about the project I started thinking about the larger legal implications and started thinking about what had annoyed me since I went to law school and heard about the George Harrison / Chiffons case, the “He’s So Fine” / “My Sweet Lord” case and I thought about how unfair that case was.
George Harrison, the judge held that he subconsciously infringed and it struck me as really unfair even as a 3rd-year law student, it struck me as unfair that every other area of the law requires some sort of intent, but this, it not only didn’t require intent, it didn’t even require consciousness, that you were even aware of doing something.
So that’s thing number one that bothered me, and thing number two that bothered me about the George Harrison case is that essentially George Harrison was put in the position to prove a negative. To prove that he’s never heard a song before. From philosophy you know that proving a negative is logically impossible. One cannot prove that you’ve never done something, it’s an impossibility.
So that has put every defendant since George Harrison in that impossible position to have to defend – say A, I’ve never heard a song, and how can you prove you’ve never heard a song over the loudspeaker at the grocery store, that’s number one. Number two is by the way, you are always gonna lose because if your song is famous enough that defendant is always gonna lose because you cannot consciously show that you unconsciously didn’t do something. Both of those things are very annoying.
Thomas: So can I-
Andrew: [Laughs] Go ahead, Thomas.
Thomas: Yeah, I was gonna see if we wanted to jump in on this topic of the law or the music first, but as an amateur musician I have thoughts on that. It’s so funny because while I don’t have nearly the background that you have, as a person who came across that lawsuit who’s into music I actually had a totally different reaction from you.
I wanna say this, jumping into this, when you present the melody – just the melody of “My Sweet Lord,” and “He’s So Fine” [Singing] duh duh duh, I agree with you. Like, oh that seems like such a, what it’s three note or something give or take a little bit of a flourish here or there, that seems unfair. But I think of it differently which is it’s also the exact same chord structure and timing, which if you were able to add in all of those variables – now George Harrison’s song I think is shifted down like three semi-tones or something so instead of A minor to D major it’s like F# minor to B major, something like that, but it’s still the same exact timing and it’s still the same exact chord relationship.
So [Singing] and to me if you were able to account for how many different variables all those things would be – time signature, timing, the chord relationship, and how they all line up exactly, I always thought in my mind, well yeah, he probably heard that song and didn’t know it, and I agree with you, it’s interesting to talk about intent, maybe there’s something there, but I always took it as “oh, yeah, he accidentally did this and since this melody and chord combination already existed as a hit song it makes sense that he should have to give them a little bit of credit for that.”
I always had an opposite reaction to that, that you have, I think.
Damien: I think yours is a reasonable reaction, particularly for somebody who is just – and I don’t wanna say “just” an amateur musician, but somebody who has a passing familiarity with music thinks oh, what are the odds of accidentally stepping on that other thing. But I would say, you know, the people that are professional musicians that I know have similar reactions to mine because we’ve kind of – professional musicians have kind of exhausted the melodic possibilities and exhausted the chordal possibilities and exhausted the structure of a song possibilities.
If you think about the blues structure, for example, and the 1-4-5 chord, those are really common, and really that’s with “My Sweet Lord” and The Chiffons, is 1-4-5 and maybe a 3 or a 6 thrown in there. So exhausting that chordal dataset mathematically and exhausting the melodic data set as Noah and I have shown, and then exhausting the song structure side of it? Each one of those things is not very large of a combinatorial data set-
Thomas: Ooh, I don’t know. Once you combine it, though, and given the fact that the melody comes in on the same syncopated rhythm? There’s a lot. If you were to map that out mathematically it would be infinite, it would be so much.
Damien: That was my point, any one of those things, they’re mathematically small but then what I was gonna say is the combination of those things, you’re right. The combination of those together, that is a harder sell to say that it was accidental. Anyway, so I would say the use case that Noah and I are trying to address is the ones where it’s just over the melody.
Damien: Or just one of those very small finite mathematic combinatorial datasets. If you put them all together as he did there that’s a tougher sell, but you’re still faced with the intent question. Did he mean to do it or not?
Andrew: Well, and that is a truly professional segue to me coming in, because I wanted to tackle the “prove a negative” question. In my view that’s just a reworking of the same intent question as applied to copyright. For example, in copyright to make your prima facie case you have to show that the allegedly infringing work actually copied your work. You could imagine this unpacking a straightforward – this is just being a subset of the intent question generally.
So I go forward and I say “no, no, I just had this fantastic idea about writing a book about the French revolution, and you know, it was the best of times, it was the worst of times, I’ve never read Charles Dickens! A tale of two what?” At some point in any kind of case it becomes a fact question for the jury to say alright, we get it, Torrez gong on testified that he created this all by himself, but we introduced records that get kids – read A Tale of Two Cities in High School and there was a copy on his shelf and it’s been reprinted a hundred million times.
It’s sort of the totality of the circumstances, lead us to infer that my testimony that I didn’t copy that is maybe not reliable. I have the same reaction as Thomas, as a musical idiot but as a lawyer I kind of have the same reaction which is this didn’t seem strange to me. You would say okay, “He’s So Fine” was number one for 11 weeks, everybody knows “He’s So Fine”-
Andrew: So it’s not – even if Harrison is saying “I promise you, I’ve introduced testimony, I definitely didn’t copy this,” well, you know, let’s put all the testimony together.
Damien: Sure, and then counselor I’d like to respond, if I could.
Andrew: [Laughs] Please, please!
Damien: To your previous example, A Tale of Two Cities, so the combinatorial dataset of the English language – so the math on what we did was [Singing] do-re-mi-fa-so-la-ti-do, so there’s eight up and then we repeated that twelve times. So the math on that is 8 to the 12th power, which is 68 billion. The math on language, for Tale of Two Cities for that is the number of English words is 117,000. Instead of 8 being the thing it’s 117,000, so repeating three words is 117,000 to the 3rd power which gets into the gazillions. It’s lots and lots and lots and lots of zeroes.
In contrast, the My Sweet Lord is three tones and it’s repeated five times. So the combinations of that 243. 243 period. So I think the real example is what are the odds of accidentally stepping in that one in 243? Pretty high. That’s thing number one, and thing number two is the point about proving things. We, as you say, in courts we prove intent all the time, that’s proof through facts, etcetera. The problem is it takes between $500,000 and $2 million to get past the discovery stage to the summary judgment or to trial and a lot of these cases, if I’m a songwriter that’s brand new I don’t have $500,000 or $2 million therefore I roll over and it seems unjust.
Andrew: So I definitely want to hit on the equities of that situation first, but before we move past on the combinatorics analysis… let me not ask it as a leading question. [Laughs] Let me make the argument which is it seems to me that there isn’t a great bright line between 68 million and 52 quintillion or whatever the Tale of Two Cities was, and so that seems to argue in favor of – however bad it is – the jury approach.
Andrew: Yeah, look, okay, we get it, you can’t sue me because I said the cat ran in my book and so did Vonnegut in Slaughterhouse-Five, but at some point the odds of that get too high for us to infer any kind of accident. The fact that there’s not a bright line is kind of what juries do and what you’ve criticized in these cases, which is they sit down, they listen to both performances, and they decide given the totality of the circumstances, they are certainly not doing combinatorial math in their head, but their intuition probably aligns with that.
They’re like well, three notes is not a big deal, but three notes at the same time – so put all of that together, rather than do it as a leading question, doesn’t the lack of a bright line suggest that this should be a fact issue for the jury?
Noah: If I could just give my perspective on this a little bit. What we’re talking about is the issue of – we have this large dataset, how are people sampling from the dataset? Because we can say we generated 68.7 billion melodies.
Noah: A lot of those are not gonna sound that great.
Noah: It was worthwhile to do and necessary and we’re proving a point, but not everybody’s gonna use all 68.7 billion in modern, common music. I wanna be careful saying modern, common music because everyone has different tastes, but the type of music we’re optimizing for is billboard top 40 type popular music. The point is, we as humans are not uniformly at random sampling from 68.7 billion melodies, we’re picking stuff that sounds good.
To a certain extent what sounds good to us is what we hear out in the world, and there is a bit of a grey area there. The point I’m trying to make is the question of whether or not someone infringed in this type of case, or the burden of proof is not beyond a reasonable doubt, it’s more likely than not, so it’s a question of probability. If we as humans are not uniformly at random sampling 68.7 billion melodies the set is actually much smaller that we’re choosing from.
This is the point Damien’s trying to make. 243 is a small number, but if you take, let’s say melodies of length 8, it’s not whatever, it’s not 12^8.
Noah: It’s something much smaller because a smaller set of those sound good in general. Then if you pick a genre-
Noah: It goes even smaller than that, and that also applies to, for example, time signature and tempo. The key that the song is gonna be sung in? Just because I choose the same time signature, tempo, and key as you that doesn’t mean I’m infringing, it means we’re both singing country music or hip hop.
Noah: So the point I’m trying to make is you’re right, there are emergent properties when you combine things together, but to a certain extend genres of music sort of hold certain things fixed.
Thomas: So it reduces the variables essentially?
Damien: That’s right.
Thomas: Yeah, sure.
Noah: You’re saying you add all these together and there are more, but what I’m saying is actually a lot of those are held fixed and so you should ignore them in certain cases.
Damien: And to put this in the legal context, there’s something in copyright law called [French accent] scènes à faire and that-
Damien: -a movie, you can’t copyright the idea of the guy in the black hat tying up the woman to the train tracks and then the guy in the white hat saving the woman. That is not a copyrightable element because that’s every Western is that, that’s scènes à faire. So kind of what we’re arguing is that melodies, especially in a particular genre of music, there are only so many chords that are in that that are common in Blues. You use the Blues chord-
Damien: You use the Blues structure. That’s scènes à faire. What we’re asking is not to break newground in copyright, but to say that melodies are perhaps just scènes à faire.
Thomas: Well when you put it that way, I mean I might agree with you. I almost think when you’re talking about this really simplistic, top 40 melodies, maybe they should just be- [Laughs] If you’re just talking about the sequence of notes. So I take that point. I would suggest though, that when we’re looking at these cases its one thing to take the extreme case one way and to say look, they didn’t know this, you have the example in your TED Talk of a baby sing something into a recorder and then Taylor Swift-
Thomas: I just would – what about thinking about it the other way which is I come up with a song and I say it’s [Singing] Hey Dude! Don’t make it mad! You know, okay, then you’re going the other way and saying since we’ve come up with all these melodies and made it free for everybody to do, now that opens the door the other way where you just obviously rip off all these songs and there can no longer be any recourse.
Damien: So of course the law is not in any of those extremes-
Thomas: Right, right right.
Damien: It’s almost always in the middle.
Thomas: And I do wanna say- sorry, real quickly. One thing we call, I think, can agree on is that the law has been applied totally haphazardly and weirdly. I don’t ever want our side of this argument, if there is a side, to be that the law is working properly, because it’s absolutely not!
Damien: Absolutely. So I think we can all agree on that. I think one of the reasons of that is because it’s haphazardly by nature by judges-
Damien: -that are not necessarily expert musicians and by juries that are not necessarily expert musicians. So you have these 50 States and federal and state patchwork of bad cases that ultimately end up with bad law. I think I would agree with that. Thinking about between the extremes is the more likely scenario, and so I would say that something that your listeners and every musician should think about is examples such as [Singing] “Twinkle twinkle little star” which has the same melody as [Singing] “bah bah black sheep have you any wool?” which has the same melody as [Singing] “A B C D E F G.” Those three songs, exact same melody.
I would guess if I were to say a percentage of our listeners who knew that they were the same melody, I would put that in maybe in the 10% or less. The reason for that is they’re three separate songs. Even though they share the same melody they’re three separate songs and we identify them as three separate songs. I would say that realization that those three separate songs share the same melody is a kind of “ah-ha” moment and I would put that in the [Inaudible] context as a gotcha moment.
The Chiffon’s said oh my gosh, My Sweet Lord that sounds just like ours, gotcah, and then I’m gonna sue you.
Damien: What I would say is because the two songs stood on their own and you have to really think about it to realize that they share the same melody, maybe those two songs are independent and you – hey dude? That’s easy, of course that guy copied it, but having almost every one of these cases is oh wow, yeah, I guess I didn’t ever realize that they have the same melody. Well that’s because they’re different songs.
Andrew: So I wanna explore that a little bit. You said “Hey Dude,” that’s obvious. I guess my first question is in your view of the evolution of copyright, how do we identify that as an obvious case? Because to me the reason that it’s obvious is-
Thomas: Well, because of the lyrics, but if I change the lyrics that’s actually less obvious than the examples you’ve already given. That’s very few notes, so it seems like that would be even less. If I go [Singing] La da and just make up words about something else, I feel like a lot of non-musicians aren’t going to recognize that.
Noah: If I could just add one thing-
Noah: The thought experiment we’re sort of going through right now is let’s take a song and pick apart all of the elements that make that song potentially distinguishable from another one, and then let’s start peeling each layer away – not really a layer because they’re sort of stacked, but you peel each part away and you say okay, I peel this one away, now is that copyrightable? I peel this thing away, is that copyrightable? Is that copyrightable? I peel this thing. So you have arrangement of instruments, you have lyrics, you have all these other things, Marvin Gaye would argue you have “groove.”
Andrew: [Laughs] Right.
Noah: You have all these things-
Thomas: Well, some people who own the rights to his music would argue that, yeah. [Laughs]
Noah: I don’t wanna pin that on him specifically. But anyway, the thought experiment is a good one, and I personally don’t have a great answer, but I think the bar should be higher than just melody. I think we both agree on this, right?
Noah: So we agree there are emergent properties when you combine things together, I think that should be teased out a bit. I think this thought experiment is a good one and we can keep going through it, but the point is I think where we’re gonna end up is if you just are left with the melody, that’s the thing that makes them so similar, so substantially similar, we’re arguing because their finite and we’re not uniformly at random sampling them, that should not be considered as something you should be able to sue for.
Andrew: Yeah! Let me- no, I thought that really nicely laid out the issues. Let me ask the question, because now we can, for purposes of the hypothetical, just assert intent. This is the Vanilla Ice case, I now say hey, I’m going to go out, I’m going to take a very, very popular song and I’m going to completely rip off the melody-
Thomas: The baseline, yeah.
Andrew: Well, but I’m changing it-
Thomas: The melody of the baseline? Oh, okay, gotcha.
Andrew: I’m making an analogy here, so it’s Shmanilla Shmice.
Andrew: And Shmanilla says yeah, again unlike our universe’s Vanilla, makes no bones about it. Admits, yeah, I totally- Rubin and Riehl proved you can’t copyright a melody so I’m totally ripping off every melody I can find and I’m just sticking new lyrics on it. Is there any room for that? How do you respond, how does that fit into the framework?
Damien: I think it’s a fine question and that goes to intent. I talk in my Ted Talk, TedX talk, about early stage evidentiary hearings?
Damien: Maybe if that early stage evidentiary hearing, Shmanilla Ice says that-
Damien: Then I think we’re talking about a different horse race because there is not accidentality? If that’s a word? It is purposeful and therefore I think at least in my mind puts it in a different category? But it could be argued that if melody equals math equals fact equals un-copyrightable scènes à faire or otherwise? Then maybe we should, as a society, think about does Shmanilla Ice, or the person that Shmanilla Ice copied from, do either of those people, should they have a monopoly? A government-provided monopoly which is what copyright is, a government-provided monopoly of life of that person plus 95 years over what is arguably the building box of music? Of melodies?
Andrew: So that is an absolutely perfect transition to the question and the issue that I wanted to ask. But I do, I wanna summarize that I think you wound up sort of where I wind up in listening, which again is not – so now I think that sets up the overarching question, which is the biggest one that I had in terms of the equities of the situation. Let me give the counterargument, I know you’ve heard it before.
All of these cases that we’re talking about are, by definition because this is the incentive in copyright is to find an incredibly successful pop song and then get a piece of it, so our defendants are Katy Perry, Robert Plant, George Harrison.
Thomas: Robin Thicke or whatever?
Andrew: [Laughs] Right.
Thomas: That was the worst one.
Andrew: These are, by definition, the kinds of people who can afford really, really good quality representation and yes, one of our recurring themes on our show is the difference between an early motion to dismiss and going to trial and trials are expensive and that’s a recurring theme, but if anybody can afford going to trial it’s probably Katy Perry, she’s gonna be fine.
The flip side of that is when you talk about new music creators – again, I say this as a musical idiot, but the people who are uploading 50 million new songs per year to SoundCloud that you talk about, maybe we should be erring on their side. These are the artists who are just barely out there trying to get their break and I worry about a world in which a Thomas Smith can write a fantastic song, put it out there, and then Warner Bros. can come by and Shmanilla Ice it up and say oh yeah, great, we’re totally copying 100% of this, we’re gonna hand it off to Katy Perry and she’s gonna make $50 million out of it and Thomas, hope you enjoyed those downloads of SoundCloud!
Good work, but there’s no copyright on your work anymore.
Damien: So I would have a response to that. First I would question your premise, certainly I would agree that all the cases that we hear about are the Katy Perrys and the George Harrisons and the people that have money to defend themselves? But I would query your premise as to those are the cases, because anybody who’s litigated, and you have, I have, everybody has, knows that first thing you do is a cease and desist letter.
How many Katy Perry-type lawyers and record label lawyers write that cease and desist letter to that small guy? That small woman? That small songwriter saying hey, your new song actually sounds like my song and then those cases go away before anybody hears about them.
Andrew: So let me jump in and just, for our listeners, what your describing is a subset of the joke you made coming on, of copyright troll litigation, and it is a real problem that is a real argument, that is valid. Yes.
Noah: Cool! [Laughs]
Damien: The example of that is, for example, Tom Petty was alleged to have reached out to Sam Smith saying your [Singing] “Stay With Me” sounds like my [Singing] “Won’t Back Down” so Sam Smith, he rolled over and gave Tom Petty co songwriting credits.
Before they went to trial, before they did anything, and if I were Sam Smith I would’ve done that too because I would have looked at essentially the situation where I, okay, if I, Sam Smith go to trial I’m gonna have to prove a negative and their probably not gonna believe me anyway so I will have spent $2 million or so on defense fees and my song might not have even been worth $2 million. How many – and Sam Smith is famous! So how many less famous people in his position essentially look at the inequities of [Clownhorn] well why would I eve – and I don’t know if I can swear on this thing, but why would I even fight this thing when I know that I’m gonna spend a lot of money on legal fees and I’m almost certain to lose because I can’t prove a negative.
Andrew: Yeah, you raise that example in the Ted Talk, I alighted over it because I’m gonna have to confess to my listeners I don’t know who Sam Smith is. I do know Tom Petty, this will not surprise anybody who’s been a longstanding listener of the show. But what I take away from that is still this is a very popular song, and yes, there was an accommodation reached sort of in order to avoid litigation, but again, I don’t know that that triggers my response of wanting to intervene in an equitable sense here because again you’re talking about sophisticated parties represented by lawyers.
Tom Petty didn’t write the letter, right? [Laughs] Sam Smith didn’t answer. Tom Petty can afford lawyers that are twice as expensive as you or I and Sam Smith can do the same, and I still don’t know even in that case where you have one artist potentially extorting the other out of a songwriting credit and out of split on the revenues, I don’t know that that outweighs my indie producer, creator, who now is at real risk of predation by these huge music companies that are out there.
Damien: Sure, that is a possibility. I as a successful musician might be trolling SoundCloud to try to find melodies that I’ll be able to use on my next song. Maybe that happens, maybe it doesn’t, I dunno.
Andrew: Yeah, well I think Warner Bros. can pay somebody to do that. It’s Time Warner, AOL, Taco Bell now, whatever.
Thomas: Yeah, it really does seem like it would open that up and we would have no recourse, any amateur musician would have no recourse.
Damien: Again I would say go back to “Twinkle Twinkle,” “Bah Bah Black Sheep” and “ABC,” would anybody recognize the same song as the SoundCloud song versus the SoundCloud song versus the Warner Bros. song? And if they can’t and it seems like “oh yeah, I guess it’s the same,” then you have the gotcha side. Should any particular person, even if the small SoundCloud person, should they have a monopoly of their life plus 95 years over the building blocks of music? I would argue no.
I think the odds of the Sam Smith/Tom Petty situation where the big person comes down on the little person once they make it big, I think that’s a much more likely scenario than Warner Bros. trolling a [Inaudible] for a musician.
Noah: I would also like to add that I feel like we’re kind of talking about the scenario that you just talked about, Damien, the larger entity whoever it is trolling SoundCloud or whatever and finding inspiration? I feel like we’re talking about that as if it doesn’t happen already? It does. For example, there are numerous hip hop musicians who’ve admitted to some guy giving them a mixtape and them copying them.
Noah: Eminem is a great example, and he has zero remorse for it and he has not paid the price for it. I still love Eminem, don’t get me wrong, favorite rapper of all time, but I feel like we’re talking about this as if it does not happen? It does. Right, so I think the question should be, given it already happens, would it happen more if we all agree that melodies are math and thus facts and should not have copyright?
I dunno, I think that’s a tough argument and I think on the flip side if a bigger, let’s say Warner Music Group or whoever it is, or Sony music, let’s say they come to me, my indie hip hop artist, whoever it is and they say, hey, you copied us, I think we’re more likely to help the little guy in that situation than to give Sony the right to troll SoundCloud in some way that’s more permissive than they already do.
Thomas: Can I jump in? Because I think A, yes it would only lead to it happening more. I mean, I can’t imagine if you relax the standards why wouldn’t it? It would either be the same or more and my money would be on more. But I gotta say, I thought I was kind of agreeing with you guys, but if the stance is that melodies are math and therefore you shouldn’t be able to copyright them, everything is math! You can reduce everything to math. The entire world could be reduced to math.
I was agreeing on the assumption that it’s like this finite melody range, this top-40-esque, you know, just the melody within a few bars, that might be something where it’s like alright, we’ve gotten to the point where there’s too many people making music, this has all been done, there shouldn’t be any great claim to [Singing] three blind mice, whatever that little simple thing is.
But if you’re saying any melody, no matter how long, no matter – if you’re saying any melody shouldn’t be able to be copyrighted I would strongly disagree.
Damien: Noah, I’ll let you go first.
Noah: Yeah, let me just say one thing to be more specific, we’re saying they’re countably finite and again, I’m gonna go back to this sampling thing, not music sampling but there’s the finite set of melodies that you could possibly use and then there’s the much smaller subset that people actually do because they sound good, and so our argument is not that their math and that’s over. They’re countably finite and the subset people actually use are even smaller than that. That’s the short of it, but Damien go ahead.
Damien: I was gonna say a similar thing and I would add to what you said is really the question is accidentally stepping on it as a small data set versus a very large data set. The number of English words in the combination of that, to say the same 12 words in a row accidentally brute force wise there are more grains of sand on the earth than there are the possibilities of doing that. That’s a much different scenario than 243, 3 pitches by 5 notes. Anyway, I think it’s a degree of probability.
Thomas: Well again, you guys are stopping at a certain level of granularity. You could add timing in – you’re stopping at, what, a sequence of 12-notes that are I guess quarter notes or however you wanna do the timing? You could do fine granularity on that and say if we’re doing 32nd notes if we’re doing 16th notes, whatever it is and it would very, very quickly get uncountable, or at least infinite to the point where it wouldn’t be reasonable to suspect.
So why is that not the case? Maybe we get more fine grained on how we view melodies? We look at all the little intricacies and not just look at it as “oh it’s these three notes in a row,” it’s oh, how long is that note? What’s the rest between them? That kind of thing.
Damien: Sure, but think about any creative expression, so you have language in copyrightable written works, you have paints in visual works, you have sculpture in 3D works. Of the arts that are copyrightable, music is the most mathematical. We have – the diatonic scale has 8 pitches, I guess 7 pitches and then if you add the top tonic it’s 8.
Damien: So there are more than that number of colors. There are 178,000 English words, so of all the copyrightable works, visual art, written, music is of its own thing. I would say the odds of stepping on the same melody are much higher than the odds of writing the same short story.
Andrew: Yeah, I agree with that.
Thomas: So I would agree. Can we also – I think we probably would all agree there was the case that we talked about briefly on this show, I think Andrew, which was the Blurred Lines one?
Thomas: Which, that is not clear to me. Even if we took your guys’ approach, that seemed to be a case that relied on it kinda sounding-ish the same? I don’t even know what criteria the jury used, I guess the feel or something?
Damien: Yeah, the feel groove.
Thomas: That’s a case that, regardless of whether you and I agree or disagree that still is just a totally inane thing in my opinion and that’s a part of music law that I don’t think any of us thinks is in good-
Damien: On that I 100% agree. That groove was a travesty, the fact that you can steal the “feel” of something? I’ve been trying to think about why that decision happened and my theory is that we as a society have essentially decreased the amount of funding for music education. Whereas people used to be able to go to grade school and figure out what notes are and pitches are, we’ve decreased the funding for music education therefore the judges that are generalist judges and the juries in the public, they just don’t know how music works. They haven’t played instruments and they don’t really know what melodies are or the finite possibilities we’ve all been talking about during this podcast.
If you don’t really know how finite the dataset is then you’re more likely to hear two songs that sound similar and say oh of course that person stole it because there’s an infinite possibility of – you could make anything you want, you have a blank page and you chose the exact same thing? They just don’t realize that the finite dataset is so small.
Andrew: I endorse that as well.
Thomas: Well, I wanna live in an alternate universe where the response to that is maybe we shouldn’t write the same piece of crap song every single time for a top-40 hit?
Thomas: There’s a reason why Elliot Smith is not being sued by anybody for his melodies copying; they’re longer, they’re more intricate, there’s more chord changes underneath them. That becomes truly infinite if you don’t repeat your melody for long enough, if you’re not just repeating these same notes it really does add up how infinite it can get. But I take your guys’ point that when you’re within that reduced range of creativity that pop music has been mathematically demonstrated to be in, maybe it should just be public domain to a certain point.
Noah: I just wanna make one clarifying point, that we’re not saying that we wanna protect people who are not creative? [Laughs]
Andrew: [Laughs] Good, good good.
Noah: We’re making an argument that is separate from how creative you are and how intricate your melodies. If we go back to your question about, let’s say somebody comes along and they take the exact same melody they just put different lyrics on top of it, I think what you’re getting at is – and what we missed in that thought experiment, the other layers that go on top of the melody and in between the melody and the lyrics. And I agree, if you have higher complexity in your songs then, yeah, anyway, go ahead.
Andrew: No, I think that’s an excellent point. I think that road leads back to everything being a question of fact and going to trial, though, right? The more what you say is that it’s a question of straight copying of a three-note sequence in a melody does not infer copying, but taking a complex melody and just sticking a couple new lyrics over it does. That seems to get back to the same problem in the first place, which is that we’re not getting early motions to dismiss in copyright cases.
Go ahead, I’m sorry. I do wanna ask a geeky process question ‘cuz I can’t help it.
Noah: Okay, I just have one other thing which is this a personal opinion not necessarily speaking for All The Music, LLC here, but what you just said is important and I think it gets down to we have some decisions to make as a society about how we wanna move forward with music copyright, and I think the question is, and Damien brings up this point a lot. Do we want people who are trained to judge the law and not music to be making those decisions? Or do we wanna try to come to some decision as a society or people that generally care a lot about this and then lobby for that thing?
Damien: I was just gonna add on top of that, that when we think about what we want to protect it is a circular firing squad because a songwriter might be suing today but they might get sued tomorrow. We, often in these thought experiments as I’ve been talking, we always put ourselves in the person that got ripped off? But that person that got ripped off today might be ripping somebody else off tomorrow, so this is not a one side, I’m against songwriters. I’m for songwriters because songwriters are on both sides.
Andrew: Oh, sure, sure.
Damien: I think songwriters need to think, okay, if I’m staring down the barrel of a gun, what situation do I wanna be in and how does that balance against me trying to shoot somebody else for ripping my stuff off? I think what Noah was saying, us needing to think about it as a society and I would argue as musicians. What should we as musicians say “yup, that’s yours, I’m not gonna rip that off.” Versus no that’s everybody’s, that’s just the musical scale.
Damien: Everybody should be able to use it.
Thomas: Well I think I brought this up. Andrew did we do? What was the Katy Perry one, because we covered that, right?
Andrew: The Katy Perry was someone that I had never heard of as the plaintiff.
Thomas: Right, and I think the point I made on that one was, like, when it gets right down to it today’s pop music environment-
Andrew: [Laughs] You did make this point.
Thomas: How much a percentage of the revenue that Katy Perry is making on this song is because she went [Singing] duh duh duh instead of [Singing] duh duh duh. None of it! It’s almost none of it.
Noah: That is exactly correct.
Thomas: It’s the image, yeah.
Noah: That’s 100% correct and I would also argue that the particular melody in the Katy Perry wasn’t even as complex as you just demonstrated right there?
Noah: The particular melody was-
Thomas: Yeah, I can’t remember right.
Noah: Starting on number 8, right? [Singing] 8 8 8 8 7 7 7 6, that was it.
Thomas: [Laughs] Yeah, no that’s nonsense.
Noah: And there was no complex rhythm there? It was literally quarter notes. That [Singing] 8 8 8 8 7 7 7 6 was the full melody, that’s $2.8 million for that.
Thomas: Yeah, that’s terrible. I think we can all agree on that being terrible.
Noah: So then another thing on that before leave Katy Perry is that particular data set? That particular melody that I just said is in the All The Music, LLC melodic dataset 8,162 times because that is length 8 and we have length 12.
Thomas: Oh right, yeah.
Noah: So necessarily that melody is combined with 4 other notes at the end of it 8,162 times. This is not a creative thing, and we’ve just demonstrated mathematically how uncreative that melody is.
Thomas: [Laughs] We can all agree on that.
Andrew: So yet again you’ve done a fantastic job of setting up the segue, but before we do I’m gonna ruin it because I want to endorse what Noah said and the spirit behind this conversation, which is I love that we are delving down into legal minutia to talk about the equities of the situation. We all agree that this is a subset of the general principle that there are lots of laws that do not accurately reflect changes in technology, and so one of the messages of this show is let’s think and talk about whether we need to re-envision that.
I didn’t want Noah’s point to pass without us signing on to that.
Thomas: Well I was gonna add one thing onto that which is I think – I mentioned that when we talked about the Roundup case, right?
Thomas: Because some people may disagree with us, but that’s a case where I believe science was really done a disservice and a jury of non-scientists was convinced of a non-scientific thing.
Thomas: And I think it can happen the same way with music. Is there some way to get more expertise involved? I guess I’ll ask this to you, Andrew, is there any way to get more expertise involved in these decisions or is it always gonna be a case of it’s just a jury of whoever and they have to get dueling experts to try to convince them?
Andrew: Well and you started to answer your own question there.
Andrew: Which is having this dialogue will change future cases and I would not be surprised if any of the folks on this conversation were engaged as expert witnesses in future litigation matters-
Andrew: Because that’s what I would do, if I had a defendant at this point I would hire Damien and say “I want you to prepare an expert report that explains the mathematical likelihood that no copying took place” and if you prove no copying took place then the plaintiff does not have a prima facie case for copyright infringement.
[Commercial – vistaprint.com promo code “OA”]
Andrew: I see that as sort of part of the program, and that gets me to my geeky process question, which is obviously you don’t have to register the copyright on the hard drive you’ve created, under the burn condition it’s now a fixed medium, but do you intend to do that? And I have a couple follow-up questions if you do. Go ahead.
Damien: That’s a fine question. So we are – your question kind of goes to what I think is the primary question for is our data set copyrightable or not? The premise to the question is is a machine created work copyrightable or not? Because ours is a machine-created work, so there’s two answers to that. I would say the answer number one, is a machine-created work copyrightable? If the answer is yes, it is copyrightable we have therefore copyrighted it under the burn convention, all you need is a fixed tangible medium, and then we have pushed it into the public domain under creative common zero, we’ve dedicated it to the public domain, so that’s thing number one.
If the answer to that question is no, thing number two, if a machine-created work is not copyrightable I would say that the legal scholars and other lawyers in our audience should think, okay, why is it not copyrightable? Is it not copyrightable because it’s A, unoriginal? Or is it not copyrightable because B, it’s fact? I don’t think there’s – I haven’t been able to think of a C. So if it’s either unoriginal or its fact, or if it’s indistinguishable, if our data set is indistinguishable from something in the Flame that sued Katy Perry? That [Singing] dun dun dun dun dun dun.
Andrew: Oh, the Flame! That’s who it was!
Damien: It’s the same melody, yeah, so if the Flame is indistinguishable from Noah’s and my data set then should Flame’s be copyrightable or not? So I would answer two things. If copyrightable, then public domain, if not copyrightable then that proves our point anyway.
Andrew: So I dunno if this is a potential “C” but your dataset, I could certainly see, because as you’ve pointed out you’ve created this project and then immediately put it into the public domain, so you don’t intend to sue artists for infringing upon your copyright, you intend for your dataset to be available as an affirmative defense in future copyright actions?
Andrew: One of the counterarguments that the plaintiff is going to make is that your copyrighted work is not valid because it is, in and of itself, a compilation of lots and lots of melodies that predate your work. So in other words, there are 10s of thousands – I mean every melody from every pop song every recorded prior to 2019 is now included in your dataset so it seems to me that could be a C.
The court could say yes, machine-created works can deserve copyright, but this machine-created work is the equivalent of a novel that has multiple chapters are, even if they’re machine, you could brute-force “It was the best of times, it was the blurst of times,” and put that all in and a court would say yeah, the problem is there are too many un-protectable, otherwise copyrightable, elements within this and that would be the worst case scenario, right?
Damien: And I would say to your question, what if somebody sues us because we’ve infringed every work that is copyrighted today?
Andrew: Well, not sues you.
Thomas: I’d say go find it! Point to it in the hard drive! No, I’m just-[Laughs]
Andrew: [Laughs] But I mean invalidate, because you intend for it to be a shield, so I mean challenges the validity of your copyright vicariously in litigation between Katy Perry and some other songwriter.
Damien: Sure, and I think that would depend on – so we’ll call the first songwriter Adam and we’ll call the second songwriter Beth. So Beth is alleged to have infringed Adam’s song. If Adam wrote their song before 2019 when Noah and I started doing our data set that’s a different scenario than Adam creating his, say, in 2020 after we’ve created our dataset, because in 2018 that would have predated ours, in 2019 that would have post-dated. I would argue that under your scenario if that was the 2020 Adam then I would say ours predated his so we can’t even argue that I copied him.
Andrew: I wanna commend you on lawyer-short correct answer! So this is really prospective going forward.
Thomas: So I thought, Andrew- I thought you were saying that the whole thing would’ve been maybe rejected because it contained melodies that-
Andrew: I wanna explore that second half first-
Andrew: But I wanted to flag the first part which is even if you think the whole thing is copyrightable, it’s copyrightable for future songwriting because then this will predate. So let’s mashup all of our things. If Katy Perry records a song and Robert Plant says hey, that sounds an awful lot like Black Dog, then this does nothing with respect to that particular lawsuit because Black Dog predates the composition, unless we move to music=math=
Damien: That’s exactly right, and that goes to my question 1, copyrightable yes versus copyrightable no, so let’s say that’s A and B. If copyrightable yes, than you’re right, if copyrightable no then it would still come into play.
Andrew: So now, then let’s move to the second half of my hypothetical which is assuming that melodies are copyrightable, what’s the status – and I ask this as a genuine question, I don’t know. What’s the status of a work where large chunks of that work are otherwise copyrightable elements that predate the work?
Damien: Are you talking about our dataset?
Andrew: Right. Let me see if I can’t give an example. Since you and I are of a similar age, do you remember, I’d do them as a child, the group Stars On?
Damien: I’m sad to say I don’t.
Andrew: Okay, well what they did is they would sing medleys. They would license – and they would singe 15 seconds of popular songs, so they would license 15 seconds of “I Want To Hold Your Hand” from Apple Records and 15 seconds of various other songs, but they also had some of their own creations in the middle. So their albums would be like 48-songs long and there would be like three or four original Stars On songs in the middle of this album, and 45 15 to 30 second samplings, but again recognizing the copyright. They paid to license to sing 30 seconds of “I Want To Hold Your Hand.”
It seems to me that the argument would be that the original stuff that Stars On did, if that was all one publication, now we’re really pushing the analogy a bit, but if that were one creation there are two potential responses to it. One is to say no, the overwhelming majority of this single creation are works that are copyrighted by other people so the whole thing doesn’t deserve copyright protection.
The second view would be well, most of it is derivative but there are a handful of original things in here so at least those original elements deserve protection.
I don’t know, I’m asking it legitimately as a question if the second view of the universe obtains in copyright law. I suspect it’s an open question.
Damien: I think there are analogies, and law lives on analogies after all. So in the copyright law for what I think you’re talking about is a derivative work. If you have an original that is a public domain work, we’ll use the example of Beethoven’s Fifth. If I do a cover of Beethoven’s Fifth, this actually happened. So the disco song [Singing] dun dun dun dun.
Thomas: Right, yeah.
Damien: That’s a cover of Beethoven’s Fifth. Obviously that disco artist did not have copyright in Beethoven’s Fifth, but they did have copyright on whatever they built on top of Beethoven’s Fifth.
Thomas: Ah, there’s also that other hit from the 60s that’s – maybe it’s Mozart the [Singing] So do they have a copyright on that?
Damien: Yeah, Cat Stevens has “Morning is Broken” so there’s all sorts of examples of hit song writers covering public domain works, so the law on that is for that derivative work, for that thing that was based on a public domain thing, they of course don’t have copyright in the public domain thing, but they have copyright in whatever they added to that public domain thing. That comes into play both with Noah’s and my dataset and with your question, I think.
What would there be, and I would say maybe if melody=math=fact=uncopyrightable, then that shell of the melody is something you can’t have, much like you can’t have Beethoven’s Fifth, but you can have all the other things around it! That disco song was a lot of things beyond just Beethoven’s Fifth, and they have everything except for that shell of Beethoven’s Fifth. So you can have everything around it, just don’t keep the melody.
Andrew: And yet again – I wasn’t going to this late in the interview introduce the concept of derivative works, but it strikes me that there’s a risk there. I guess I’ll end with this because I know you have a hard out as well, but the right to produce derivative works is one of the bundle of rights that goes along with copyright. The more we shrink the scope of what qualifies as copyrightable, the more we’re shrinking that as well. I think that needs to be factored into the analysis.
Damien: I agree with that, yeah, I agree with that and maybe my closing since we’re coming close to the end, I agree and we should really think about whether the derivative works should be something that should be protectable for melody or whether that should be the shell much like Beethoven’s Fifth is the shell that – everybody can build around that shell but the core itself can’t be done.
Really, the summary of what Noah and I have done goes to the question of do we copyright the thing that is ache of the voice? The way a guitar really wailed? All these things that machines cannot do and separate that from what Noah and I created that spit out at 300,000 melodies per second onto a hard drive. Machines do melodies really, really well today and they’re gonna do melodies really even better tomorrow. They can’t do the ache of the voice, they can’t do the wailing of the guitar.
Query whether we as songwriters wanna say okay, leave to the machines what the machines do well but leave to copyright what is uniquely human, the stuff machines can’t do that really, when you think about it, the person doesn’t listen to the Katy Perry song because they really like that combination of pitches. They love that Katy Perry song for the reason you said earlier, because of the way she sang it, the groove that she had, all of those intangibles that are not the melody. Let’s leave the melody as the building blocks that everybody can use.
Andrew: Can we have you back on for a long argument and episode on autotune? [Laughs]
Damien: Exactly. I have some feelings on that.
Andrew: I thought perhaps you might. I like that summary. Noah, anything you wanna add?
Noah: Nope, it’s pretty good.
Thomas: Hey, thanks so much for joining us Damien and Noah. Hey, do you wanna point people? I know, you know, they’ve already seen the article, they’ve seen the TedX talk I imagine, is there anywhere else that you want to point people to check out more about this project and stuff you’re working on?
Damien: Yeah, allthemusic.info is our website, so there you’ll be able to see the Ted talk, there you’ll be able to see the interviews, including this interview, we’ll put that on our press page.
Thomas: Oh, cool.
Damien: And you’ll have a very lengthy Frequently Asked Questions which, you can imagine, the internet had some opinions on what we’ve done.
Thomas: [Laughs] Yeah.
Damien: So we’ve collected all of the objections that we’ve had and put them into an FAQ that you can peruse and be able to throw rocks at if you’d like.
Andrew: I have to say, this FAQ is exactly what you would expect when you take a lawyer and a computer programmer and have them itemize a list. It’s bea- even if I don’t agree with everything that’s said in it, the organization is a thing of beauty. I’m jealous.
Thomas: You guys are nothing if not systematic. No one’ll ever say you are not systematic.
Andrew: [Laughs] I love it.
Damien: I felt like I was drafting a brief when I did the FAQ.
Andrew: I felt like I was reading it, it was fantastic, I got lost in it for like half an hour.
Thomas: This was so much fun, thank you so much for coming on the show, we really appreciate it.
Damien: Thank you for having us, we love having this dialogue, thank you for continuing it.
Andrew: Yeah, absolutely.
Noah: Thank you guys.
Thomas: And now it’s time to thank our top patrons here on Top Patron Tuesday, these are our Hall of Famers, our All Time Greats, they deserve even more praise than we give them but we’re gonna do our best!
[Patron Shout Outs]
T3BE – Answer
Thomas: And now it’s time for T3BE answer time. Hoo! I gambled on this one, did it pay off? Let’s find out!
Andrew: Alright so this was a question regarding identification of a suspect. Store owner, jewelry store gets robbed, shown a photograph of the defendant by the police detective and the store owner examines it, says “hey, is that the guy you think is the suspect?” and the detective goes “yeah, we’re pretty sure.” Then the store owner says that the man in the photograph was definitely the one who robbed her, the defendant gets indicted, his counsel moves to suppress any trial testimony by the store owner identifying the defendant as the robber.
Should the court grant the motion to suppress? As always, whenever you are bold I love being bold. You, right off the bat said yeah, the court’s gonna grant the motion to suppress, that’s a bad idea, I’m eliminating the no answers. Good elimination, Thomas!
Andrew: It came down to C or D and you talked yourself into D while evaluating through the questions, so let’s go over both those answers. C is yes because the improper out of court identification has necessarily tainted any in court identification; and D was yes, unless the prosecution demonstrates that the in court identification is reliable. You were leaning C and then talked yourself into D, and Thomas, you came to the right answer!
Thomas: Oh ho ho hoooo, man! Wow!
Andrew: Absolutely a great – this is a hard question and you got it exactly right.
Andrew: And you got it exactly right for the right reasons, which is to say what makes C a bad answer is the word “necessarily.”
Andrew: Even if the process is tainted, which obviously this was-
Andrew: -super bad.
Thomas: But I was just imagining, what if the store owner’s like yeah, it’s my brother. I know they showed me the photograph but I know who did it! Is that what it is? It leaves open the idea-
Andrew: That is exactly right. But what you do is you do an independent analysis that is a multifactor inquiry as to whether the witness’s identification is reliable in court. You can do it for precisely that reason. By the way, this also is part of the explanation for – at the beginning of every Law’d Awful Movie when they say “can you point at the defendant over there?”
Andrew: And the witness does? That’s what you’re doing. The reason that that has become a trope is because it reflects part of what actually happens in a trial which is you have not just an out of court identification of a defendant which would be hearsay, but you have an actual in court identification which is then subject to that multifactor analysis that we discussed that can be reliable even if there were procedural problems and anomalies beforehand.
But notice, by the way, the burden shifts. The burden shifts back to the prosecution to justify the identification, but you can for exactly the reasons you came up with. So fantastic job, Thomas!
Thomas: Holy moly! Wow, I mean I don’t know what to say, I guess I’m just a real life lawyer now.
Andrew: I agree! That’s it, we’re done!
Thomas: Because the safe answer, I think from my perspective, was C, and my philosophy is go with the simple safe answer, but I was able to come up with an exception to that that actually worked? I just feel, personally, this is an achievement for me. But yeah, alright! I’m happy! Let’s find out who else is happy because they are the big winner this week! Who is it?
Andrew: Alright Thomas, this week’s winner is Hampel-Tier on Twitter, and thank you for the hyphen, by the way, I would have pronounced that Ham Peltier, but Hampel-Tier writes “D, ‘cuz criminal law tends to protect incompetent/biased cops giving them a second chance most suspects will never get. Also, Thomas chose it.” So congratulations!
Hampel-Tier also says A seems maybe a little too broad and unspecific. B, if that’s not improper, what is? C, because in court ID might be independent? That is correct, pithy, appropriately concerned about the state of law enforcement, and you have a ham-related name! So congratulations Hampel-Tier, enjoy your never ending fame and fortune, and everyone give this person a follow on Twitter, that is @hampeltier and congratulations on being this week’s winner!
Thomas: Alright, thanks so much for listening! Hey, thanks so much to our special guests Damien Riehl and Noah Rubin, that was a lot of fun, I hope you enjoyed it as much as we did and we will see you on rapid response Friday!