Roland: Wrong But Persistent

This is an update to the unsubstantiated legal threat I received from Roland a few weeks ago.

My ISP, Linode, was reviewing the situation and still hadn’t come to a decision (I suspect they wrote to the email address of the sender and failed to receive a reply, as I did). However, today they received a DMCA takedown notice.

— BEGIN NOTICE —

Dear Sir/ Madam,

I, the undersigned, state the following:

1) I am the legal representative authorized to act on behalf of Roland Corporation, of certain exclusive intellectual property rights (“Roland Corporation”);

2) I attest, under penalty of perjury, that I have a good faith belief that

freewavesamples.com
http://freewavesamples.com/roland-d-20-kick
http://freewavesamples.com/roland-jd-990-pizzicato-strings-c4
http://freewavesamples.com/roland-d-20-snare
http://freewavesamples.com/roland-gr1-orchestra-hit-c5
http://freewavesamples.com/roland-gr1-trumpet-c5

use Roland Corporation’s intellectual property in the content without authorization. This use falsely suggests Roland Corporation’s sponsorship or endorsement of the website and violates Roland Corporation’s exclusive rights;

3) Roland Corporation represents that use of the material is not authorized by the copyright owner, its agent, or the law;

4) Based upon information at its disposal on freewavesamples.com, we believe that the statements in this notice are accurate and correctly describe the infringing nature and status of the Infringing Material;

5) I understand that, pursuant to 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material or activity is infringing may be liable for damages, including costs and attorneys’ fees.

The reasons that the domains named above must be suspended are as follows:

a) Offer(s) a counterfeit or otherwise unauthorized item for sale that violates the IP Owner’s trademarks and/or copyrights.
b) Misuses the IP Owner’s brand name, trademarks and/or copyright.
c) Uses a copyrighted image without authorization from the IP Owner.

The reported website(s), and by consequence the infringing content, is accessible globally, and is protected under the Berne Convention, the protection of which extends to 168 countries (full list here: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15).

We are providing you this letter of notification pursuant to the Digital Millennium Copyright Act 17 USC§512(c) to make you aware of material on its network or system that infringes the exclusive copyrights of Roland Corporation.

Attempts to resolve this issue with the Registrant have been unsuccessful. We seek your help in removing the infringing content. Please take reasonable and prompt steps to investigate and respond appropriately to this report of abuse commensurate to your commitment to addressing abuse as outlined in your terms of service and commensurate to your obligation under relevant law.

We may be contacted at the email address below.

Sincerely,

brandprotection@rolandipr.com

— END NOTICE —

I do not agree with Roland’s claims and do not believe they would win a court challenge.

This content on freewavesamples.com does *not* violate Roland’s copyright, nor Roland’s trademark. The trademark issue is explained in this earlier post. Here I address the copyright (Linode thought that was their concern, but to me that letter still reads as a trademark threat).

The samples posted on freewavesamples.com are not samples that were created by Roland. They are sounds that I played on and recorded from the Roland synthesizers that I own, recorded at a specific pitch (C in the best octave for the patch, usually), edited and denoised, normalized, etc. Some of them sound better than the original instrument (particularly in the case of some of the noisy 1980’s synths).

This is a very important difference.

In buying an instrument, you also buy the right to do whatever you like with recordings of sounds *from* that instrument. If this were not the case, every song recorded using a sound from a Roland synthesizer would be in violation and the music industry would fall apart.

This is why there is a thriving sample pack industry, with retailers selling CDs, DVDs, and downloads of samples from various synthesizers and drum machines. If you want all of the quality, flexibility, programmability, and versatility of the original instrument you buy the instrument. If you just want access to some of the preset sounds, you buy the sample pack. You don’t get much value from a sample pack, though – the presets are the least interesting part of an instrument, and using them in a song makes you sound unoriginal and uncreative. In addition, the pitch shifting involved in transposing a single-note sample to other pitches loses any articulation associated with that sound and introduces artifacts and aliasing that makes it sound less realistic the farther you go from the recorded pitch.

This is also true for other instruments. You can buy a guitar and get all of the flexibility that comes with owning an expressive instrument with hundreds of years of design history behind it. Or you can buy a sample CD with a few notes and sounds that you’ll be hard-pressed to make sound like a real, live version of the instrument on a recording.

If these were binary dumps of the actual samples in the synthesizer’s ROM, this *would* be in violation of Roland’s copyright, assuming the samples in that particular synthesizer are legitimately copyrighted. That has been a problem for emulator developers, such as the MT-32 emulation project. (references HERE, HERE, HERE, and HERE). I was aware of that case before ever starting the site, which is why I have not taken binary dumps of any samples. Interestingly enough, the MT-32’s samples were not copyrighted, and things turned out favorably for the emulator.

However, worrying about this stuff makes me tired. And at this point thinking about Roland fills me with disgust. I’m not sure I even want to mention them on my site, freely advertising and promoting their brand and increasing their name recognition when I get nothing for it (these are FREE downloads, for pete’s sake!).

For now I’m taking the mentioned Roland samples down and filing a counter-notice to their DMCA request. If they don’t respond in 14 days, which I doubt they will, then I may put them back up. If I can stomach it. I’ve also emailed the EFF to ask for their opinion since they were involved in the original MT-32 emulator case.

I have not taken ALL of the Roland samples down. Only the ones mentioned in their complaint. Based on the outcome of this dispute, I’ll either remove everything from Roland (there’s lots more), or keep them all up.