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DRM for 1'3" of Silence 637

Posted by CmdrTaco
from the wierd-forms-of-protest dept.
jc42 writes "In the latest entry in the battle over Digital Rights Management, a fellow has blatantly ripped off a "tune" from the iTunes Store. "Tune" is 1 minute 3 seconds of silence. To compound his crime, he has posted the tune on his web site for anyone to download. I downloaded it to iTunes, and it played just fine (but now I suppose I'm a criminal, too). I wonder what John Cage and Mike Batt would have to say about this? Will lawyers for Apple or Ciccone Youth send a C&D letter? If I were to make my own MP3 silent tune of exactly the same length and put it online, would I be infringing their copyright?"
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DRM for 1'3" of Silence

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  • This is just dumb. (Score:5, Informative)

    by Slartibartfast (3395) * <.gro.stoj. .ta. .nek.> on Thursday February 24, 2005 @04:47PM (#11770131) Homepage Journal
    Sorry, but no. As I seem to recall, there is a minimum number of notes required in order to copyright something. As a corallary, you could not write a "book" with the contents being the word "the", and then sue everyone for breach of copyright. In other words, raw, unadulturated silence cannot be copyrighted; it needs content.
  • Already Slashdotted (Score:5, Informative)

    by BarryJacobsen (526926) on Thursday February 24, 2005 @04:48PM (#11770163) Homepage
    Article is already slashdotted, here's the google cache:

    I'm gonna preface this by saying that I love Apple and their products and I hate the RIAA and their shortsightedness. My only complaint with Apple is the restrictive DRM built into iTunes Music Store songs (also, those new G5s could be a little cheaper).

    In protest, I've committed a real crime and documented the entire process. But it shouldn't be that way and that's why I've done it. Come and get me, Apple! Come and get me, RIAA!

    It all started with a free song code from the Pepsi iTunes promotion. I tilted several Pepsi bottles at the local Ralphs (just look for random letters under the cap), found me a winner and scored a free song.

    You may not know this, but there are several tracks that you can buy from that iTunes Music Store that consist of nothing more than total silence.

    Here's one from Ciccone Youth (a Sonic Youth side project):

    So I bought it.

    Then, I wanted to play this song on another device other than my iPod (I own a Creative MuVo TX MP3 Player). No go. The Digital Rights Management (DRM) makes it impossible to transfer the song to my other MP3 player unless I go through some ridiculous steps which involve burning the purchased song to a CD and then ripping it. This causes a noticeable loss of sound quality due to the song being recompressed. Totally unacceptable. I want pure silence.

    So I stripped the DRM using JHymn, a cross-platform application that unlocks your DRM'ed songs and keeps the original's sound quality. This is absolutely, positively illegal according to the Digital Millennium Copyright Act (DMCA).

    One law broken, one to go.

    One file is legal, the other one is definitely not. Can you spot the one that'll get me in trouble? I'll give you a hint: it's the one without the little lock over its icon.

    There's just one law left to break. I'm offering this very file for download here on my website. So go ahead, download it (1.1 MB) and break the law with me. Right click, save as, and crank it up on your favorite portable electronic music player.

    If this little stunt gets me in trouble, you'll be the first to know.

    You can help stop the RIAA and their nonsense at Downhill Battle.

    Find out more about protecting your digital rights online at the Electronic Frontier Foundation's website.

    Silence is golden. Get involved.
  • by Fahrvergnuugen (700293) on Thursday February 24, 2005 @04:54PM (#11770242) Homepage
    this would fall under fair use - silence cannot be copyrighted.

    From the US Copyright Office Website:
    "The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission."

    http://www.copyright.gov/fls/fl102.html
  • by milgr (726027) on Thursday February 24, 2005 @04:56PM (#11770285)
    If you have ever seen the score, it has several pages of rests of various lengths. Recordings of performances of this piece include the background noise - including the pianist turning pages of the score, frequently people coughing or shifting restlessly in their seats.

    By the way, Cage's piece is "4'33" of silence" (and it does last 4 minutes and 33 seconds).

    Not only does it bring up the question of what is Art, but what is copyrightable. There was a suit about this (The suit was settled with John Cage's estate getting a 6 figure settlement). See http://www.billboard.com/bb/article_display.jsp?vn u_content_id=1710115 [billboard.com]

  • John Cage (Score:3, Informative)

    by jargon (75774) on Thursday February 24, 2005 @04:58PM (#11770307) Homepage
    It is useful to see some of this within the larger copyright context of John Cage [wikipedia.org] and Mike Batt [wikipedia.org]'s copyright dispute over Cage's piece, 4' 33" [wikipedia.org].
    Cage's estate won that case - or rather, recieved a large settlement out of it.


    This is a bit of a commentary [kconline.com] on the ordeal.

  • by AllergicToMilk (653529) on Thursday February 24, 2005 @05:01PM (#11770356)
    That should be "...Hunter S. Thompson would have said,...". Hunter took his own life a few days ago.
  • Re:John Cage (Score:4, Informative)

    by Antibozo (410516) on Thursday February 24, 2005 @05:02PM (#11770363) Homepage

    Moreover, John Cage would explain that 4'33" is not simply 4'33" of silence. He did actually write a score for this piece, note by note, and comprised of three movements. He then made all the notes tacet, and added up their time at a tempo of his choice to come up with the durations for the movements. If you knew what the original notes are, however, you could imagine the piece while it is performed.

    In addition, the three movements are punctuated by the performer closing and then reopening the piano lid.

  • by funny-jack (741994) on Thursday February 24, 2005 @05:05PM (#11770401) Homepage
    And here [216.239.57.104] is the link to that cache. The pictures are even still working.

    For now.
  • Mike Watt (Score:2, Informative)

    by fohat (168135) on Thursday February 24, 2005 @05:06PM (#11770419) Homepage
    The gentleman from Ciccone Youth was Mike Watt. (not Batt as the op seems to say).
  • by Sloppyjoes7 (556803) on Thursday February 24, 2005 @05:08PM (#11770441)
    As evidenced by Mike Batt being sued by the John Cage Trust, [cnn.com] people have been sued for copying silence.

    Apparently, his minute of silence "infringed" on the late John Cage's 4'33 of silence.

    No joke. No legal precedence was set, as the matter was settled out of court. (I wonder how much the trust got out of suing someone for copying silence.)
  • Re:John Cage (Score:3, Informative)

    by gmaestro (316742) <jason@guidry.gmail@com> on Thursday February 24, 2005 @05:11PM (#11770480)
    I could have sworn the Cage 4'33" was usually performed by memory. So while the sound of the piano lid opening and closing, perhaps the performer placing his watch on the stand might be heard, there should be no pages turning.

    You are correct, however, that the point of the Cage piece is environmental noise, a concept I'm sick of explaining.

  • Re:Precedent (Score:4, Informative)

    by jeblucas (560748) <(jeblucas) (at) (gmail.com)> on Thursday February 24, 2005 @05:17PM (#11770539) Homepage Journal
    Why has he violated the DMCA? Doesn't that require that he make, sell, or produce a technology or service that circumvents DRM? In fact, if you read the DMCA (crazy, I know), you'll find:
    Section 1201 divides technolgical measures into two categories: measures that prevent unauthorized
    access to a copyrighted work and measure that prevent unauthorized copying of a copyrighted work. Making or selling devices or services that are used to circumvent eith category of technological measure is prohibited in certain circumstances described below. As to the circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second.
    I know this guy thinks he's a hilarious supergenius, but:
    • you can't copyright silence, so this is moot.
    • you are allowed to circumvent DRM to copy copyrighted material that you own.
    Everyone's an expert. Read this: http://www.copyright.gov/legislation/dmca.pdf [copyright.gov]
  • by bill_mcgonigle (4333) * on Thursday February 24, 2005 @05:24PM (#11770616) Homepage Journal
    but if he cracked the DRM to access the silence, it is indeed a crime under the DCMA

    Not so. The DMCA forbids circumventing technological measures that control access to copyrighted works. In this case, since silence does not qualify for copyright, you'd be circumventing technological measures that control access to uncopyrighted works, which would not fall under the DMCA.
  • Re:Wow Compression (Score:3, Informative)

    by LesPaul75 (571752) on Thursday February 24, 2005 @05:24PM (#11770618) Journal
    Actually a good point about MP3 (and similar) compression schemes. They have a fixed bitrate. So when you compress a song, you say "compress this audio down to 128K bits per second" and then the algorithm throws away all of the frequency data that won't fit into that many bits. So, even if it's dead silence, the algorithm is still going to fill up 128Kb for each second of silence (even though it's effectively filling that 128Kb with zeroes). Even if you use VBR (variable bit rate) compression, the algorithm still tries to average a certain overall bitrate, so the result is the same. It would be nice if you could just say "compress this song using as many bits as you need to make it sound good," but unfortunately the phrase "to make it sound good" is very subjective. The algorithm doesn't know what sounds good.
  • by jc42 (318812) on Thursday February 24, 2005 @05:32PM (#11770711) Homepage Journal
    Heh. I really think that I should send an apology to him for mentioning his site on /.

    Actually, the problem is probably even worse than just /., since I've found a similar link on Dave Barry's blog [herald.com] (registration required). I wonder how many readers Dave has, compared to /.? I have seen comments on his blog about how they've "slashdotted" some poor server. I wonder if the Miami Herald has the bandwidth to withstand the onslaught ... ;-)
  • Re:Precedent (Score:2, Informative)

    by ThatsNotFunny (775189) on Thursday February 24, 2005 @05:33PM (#11770728)
    Civil Law != Criminal Law.

    An analogy which compares the violation of one to the violation of the other will always be inherently flawed.

    According to the US Copyright Office at http://www.copyright.gov/circs/circ1.html#wwp :

    Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:


    1. literary works;
    2. musical works, including any accompanying words
    3. dramatic works, including any accompanying music
    4. pantomimes and choreographic works
    5. pictorial, graphic, and sculptural works
    6. motion pictures and other audiovisual works
    7. sound recordings
    8. architectural works

    Since silence is not music, it is not protected by #2. Since silence is, by definition, the absence of sound, it cannot be a "sound recording", and therefore cannot be protected by #7.

  • Re:Precedent (Score:3, Informative)

    by dafz1 (604262) on Thursday February 24, 2005 @05:34PM (#11770761)
    The file was never copied, so your point about circumventing DRM to copy is moot. If you read the summary provided, it says:

    "This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying. By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited. "

    What the article talked about was using JHymn to modify the file, "circumventing a technological measure in order to gain (unauthorized) access" to the iTunes file and allowing the file to be played on a different mp3 player. Apple does not authorize such access, nor does the contract Apple signed with Ciconne Youth's record company.
  • Re:the flipside (Score:4, Informative)

    by Golias (176380) on Thursday February 24, 2005 @05:35PM (#11770773)
    Actually, according to what the Amusement & Music Operators Association (AMOA) said in 1997, the most popular jukebox selection of all time is Patsy Cline's recording of "Crazy."

    It's a cute story though. I could see why you would want it to be true.
  • by tepples (727027) <tepples.gmail@com> on Thursday February 24, 2005 @05:38PM (#11770823) Homepage Journal

    since silence does not qualify for copyright, you'd be circumventing technological measures that control access to uncopyrighted works

    Except for the fact that the same circumvention device that cracks uncopyrighted works can also be used to crack copyrighted works in violation of 17 USC 1201(a)(2) and (b).

  • Re:Wow Compression (Score:5, Informative)

    by Leto-II (1509) <`slashdot.4.toby ... spamgourmet.com'> on Thursday February 24, 2005 @05:43PM (#11770905)
    Even if you use VBR (variable bit rate) compression, the algorithm still tries to average a certain overall bitrate, so the result is the same. It would be nice if you could just say "compress this song using as many bits as you need to make it sound good," but unfortunately the phrase "to make it sound good" is very subjective. The algorithm doesn't know what sounds good.

    Bzzt. Wrong. VBR schemes in formats such as OGG, MPC, and others are based on "quality" as opposed to bitrate. There's certainly a correlation between the two, but the idea is to have compression levels linked to quality as opposed to size.

    Even with MP3 you can have VBR encodings that go down to 32 bps during silence. Check out LAME's "alt-preset" (just preset in recent revisions) command line options for damn good quality based settings.

    See Hydrogen Audio [hydrogenaudio.org] for more information than you could ever want.
  • by lxt (724570) on Thursday February 24, 2005 @05:51PM (#11771011) Journal
    As a music student, I feel perhaps it is my duty to point out that a proper live performance of 4'33" isn't actually "silence". If you were to hear the piece live, you'd be hearing the sounds of the nervous shuffles, coughs, expectant wheezes of all the people around you. That's the point of the piece.

    Seeing as 4'33" is actually written out in music, to record the piece you must perform it, using a piano. Even a studio recording will not be perfect silence, and a live recording will have a noticeable amount of background noise, maybe with the occassional cough, giggle etc.
  • Re:John Cage (Score:5, Informative)

    by Golias (176380) on Thursday February 24, 2005 @05:56PM (#11771088)
    See the 1990 American Masters documentary on John Cage, in which he states explicitly, "4'33" was written note by note."

    As with any dispute of fact, it's Google to the rescue:

    4'33" was written in the summer of 1952 just after Cage returned to New York City from Black Mountain College, where he had been invited to participate as a teacher and composer in this rural, private-school environment, and worked with other important figures in the art world. It was here that Rauschenberg did his White Paintings (1951) and Cage first saw them, provoking 4'33". It was here that the first multimedia "happening" occurred, Cage's Theater Piece No. 1, in which many of the faculty participated. It was also here that Cage planned work on Williams Mix and first used the time bracket notation that became so prevalent in his later music.


    4'33" is written for any instrument or combination of instruments. It is, however, usually done as a piano piece. This is probably because of the precedent set by the premiere performance, since the score does not specify a piano or any other instrument. The score is in three movements. Curiously, it has existed in at least six different versions (two different manuscripts and four different editions), although only two of these are different in performance.

    The original Woodstock manuscript, dated August 1952, is now lost and was written in conventional grand staff notation, containing measures of silence. It is here referred to as the Woodstock ms. It was this score that David Tudor used for the premiere performance. Tudor made at least two reconstructions of this score for his own performances.

    The original was on music paper, with staffs, and it was laid out in measures like the Music of Changes except there were no notes. But the time was there, notated exactly like the Music of Changes except that the tempo never changed, and there were no occurrences -- just blank measures, no rests -- and the time was easy to compute. The tempo was 60.


    So there you go. No notes. The process of composition being described as "note for note" was just Cage's overcompensation due to his worry about his work being taken as a joke if he did not go out of his way to put effort into creating it.

  • by Larry Lightbulb (781175) on Thursday February 24, 2005 @06:06PM (#11771197)
    It's for any instrument/s. The first performances were by David Tudor on piano and that seems to have stuck.
  • by That's Unpossible! (722232) * on Thursday February 24, 2005 @06:13PM (#11771266)
    Take the Cage recording. If someone had had the forethought to place a microphone of there own, right next to where the original was, could _they_ copyright the recording?

    Yes. However, it is highly likely that Cage would not have given permission to record his piece being "played," so the point is moot.

    Could I record what I hear at the Mall, and sell it?

    Yes.
  • No Infringement (Score:4, Informative)

    by John Hasler (414242) on Thursday February 24, 2005 @07:23PM (#11771951) Homepage
    > If I were to make my own MP3 silent tune of
    > exactly the same length and put it online, would
    > I be infringing their copyright?

    No.

    a) The work contains no protected elements.

    b) Independent invention is a complete defense.
  • Re:John Cage (Score:3, Informative)

    by jc42 (318812) on Thursday February 24, 2005 @07:58PM (#11772214) Homepage Journal
    the courts found that such attribution proved that Batt's minute of silence was derived from Cage's silent work.

    Actually, the courts found no such thing, because they were never consulted. It was settled out of court.

    Rather a pity, IMHO. It might have been useful to have an actual decision.

  • Re:Well (Score:3, Informative)

    by fforw (116415) on Friday February 25, 2005 @12:44AM (#11774016) Homepage
    John Lennon & Yoko Ono had a track on their "Life With the Lions" album that was called "Two Minutes Silence" and thats all it was. Two minutes of silence so you could say that this 1.3 minutes of silence is just an incomplete rip-off of that track and is therefore a blatent copyright breach.
    I think that the John Lennon & Yoko Ono song itself was just stolen out of John Cage's 4'33 [classicalnotes.net] from 1952.

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