Predatory clause in license agreement? Is this ethical?

Discussion in 'MASCHINE Area' started by Deafkon, Sep 11, 2019.

  1. Deafkon

    Deafkon NI Product Owner

    Messages:
    136
    I usually don't read license agreements from large corporations like NI, but do with software from smaller devs.

    A while back I purchased a plugin which uses an algorithm to generate endless arrays of melodies, totally random but sometimes results in surprisingly good musical output. It can theoretically generate an infinite array of melodies.

    It's from a small company. I believe it is a 1 or 2 person operation, so I was surprised to see such a long user agreement. I read it and half way though, look at this insane clause (I added bold to important key words and underlined the grievance):

    Edit: Redacted the company info to give them a chance to respond.

    I am actually stunned, and canceled installation. I reached out to the dev directly to clarify, but my goodness. How does that protect the developer in any way? Why would I bother using this with such draconian licensing? Technically, their "output" could generate an entire Michael Jackson song if pressed millions of times. Odds are probably 1 trillion to 1, but it could. It could technically output melodies you've already come up with before.

    Edit: Forgot to write that it would make more sense for them to have me "agree to" them not being liable for any output that sounds similar to any copyrighted works distributed by "Licensee" as sample packs, yadayada"
    What is everyones take on this? Am I over reacting?

    For those that are curious to read more, here is the license agreement in it's entirety:

     
    Last edited: Sep 12, 2019
    • Informative Informative x 1
  2. HammyHavoc

    HammyHavoc NI Product Owner

    Messages:
    859
    Sounds like an interesting toy, but that kind of clause pretty much makes it useless for any legal professional context. Would be very interested in knowing what the developers respond with, if anything.
     
    • Informative Informative x 1
  3. Uwe303

    Uwe303 NI Product Owner

    Messages:
    4,606
    Isn't the output some kind of random, with rules, so how should they know that this or that melody is comming from their plugin? Strange somehow.


    Uwe
     
    • Like Like x 2
  4. Deafkon

    Deafkon NI Product Owner

    Messages:
    136
    I will definitely update when/if I get a develop response. I also love the clause that states you have agreed to the license by purchasing the product. Yet, no license agreement displayed when buying.

    It's like going to buy an office space and they try to make you sign an agreement that gives them ownership of the "output" of capital gains. o_O

    Strange indeed. The dev seems like a pretty cool person so I'd be surprised if this isn't amended in some way, it certainly doesn't fly in its current state.
     
    • Like Like x 1
  5. D-One

    D-One Moderator Moderator

    Messages:
    6,700
    It kind of sounds like they copy-pasted that license agreement from some sort of template because it doesn't make much sense... But I've seen similar before.

    NI also has a statement in the license that you can't use the "output" of their instrument preset's for commercial purposes like for example: You use a preset, play a melody, then let's say... sell that Melody as an audio Loop on Splice, Sounds.com, or your personal "Sample Pack" website or anything similar... Baffling to me but hey.. it exists.
    It might be a just-in-case-someone-abuses-the-system-somehow-clause like it seems to be for NI:
    https://www.native-instruments.com/forum/threads/what-ni-instruments-can-i-use-to-make-sample-packs-if-any.346287/
     
    Last edited: Sep 12, 2019
    • Informative Informative x 2
    • Like Like x 1
  6. Uwe303

    Uwe303 NI Product Owner

    Messages:
    4,606
    But that is fully understandable, you just have to make your own presets then you can sell them or make a sample instrument out of it.

    Uwe
     
    • Like Like x 1
  7. D-One

    D-One Moderator Moderator

    Messages:
    6,700
    Hummm... I guess, but..
    What if I tweak the preset, does it still count? How far to I need to tweak it? What if I use fx that change it beyond recognition, is it still a NI "Sound" then? What if I take a bass sound, increase the polyphony and record some complex chords 4 octaves up, is it the "same" sound?
    Sounds like an unrealistic rule just to prevent people from making one-shot libraries from the presets, which I can understand. The presets/sounds are used to sell loops all over the web tho.
     
    Last edited: Sep 12, 2019
    • Like Like x 2
    • Informative Informative x 1
  8. Uwe303

    Uwe303 NI Product Owner

    Messages:
    4,606
    Yeah that's the issue - I guess if it sounds different then they can't say for sure, and I guess nobody would go to court if it's not absolutely obvious - but who knows?
     
    • Like Like x 2
  9. v00d00ppl

    v00d00ppl NI Product Owner

    Messages:
    136

    It is a safety clause so you don’t recycle the loops and sell the sample packs. F9 audio has something similar, but they just say in plain speak that you can’t make sample packs out of their content period. Music to sell is all good.

    When you use sample pack services like splice and noiiz there’s just so many people trying to recycle spindpack sounds and sell it like their own. Usually if you report stolen content to splice and noiiz they will make it unavailable for download.
     
    • Informative Informative x 3
  10. D-One

    D-One Moderator Moderator

    Messages:
    6,700
    Safety clause! that's the term I was trying to find. Yeah, I guess that's it.
    As for the OP, perhaps the one for MelodySauce is the standard clause that devs use for software capable of "auto-generating" content, if it's a small operation they probably dont have a legal team to tweak the legal mumbo jumbo, I personally wouldn't pay much attention to it or view the company in a negative way over it.

    BTW that plugin seems like the same thing as Maschine's Variation Engine, a simple algorithm to generate random note output within a set Scale and a few tweakable parameters, reviews saing it uses 'Artificial Intelligence' are kind of funny. Soon enough there will be Maschine Learning Artificial Intelligence microwave ovens...
     
    • Like Like x 2
    • Informative Informative x 2
  11. Deafkon

    Deafkon NI Product Owner

    Messages:
    136
    That's a good point. I did redact their company info to give them a chance to respond. Perhaps this license struck a nerve with me due to the nature of the program itself..which can theoretically output every musical combination known in a specific scale and mode.

    On the other hand, I suppose I could always claim their program infringed on my intellectual property if it spit out a melody that sounded similar to something I released? Two can play that game :rolleyes:

    But yeah, I think companies should be more aware of what is in their license for ethical reasons rather than this kind of catch-all storm drain.

    Good points from all, thanks for the insight!
     
    • Funny Funny x 2
  12. v00d00ppl

    v00d00ppl NI Product Owner

    Messages:
    136
    Back in the PS2 days there was a music making program with very vanilla library sounds to use for making music on the PS2. The problem was if you read the license agreement if you use any of their sounds you have to state them in your credits and they get a cut of your commercial release. I threw that game out of the window when I read that.
     
    • Like Like x 1
    • Funny Funny x 1
  13. Ghost_On_Da_Maschine

    Ghost_On_Da_Maschine NI Product Owner

    Messages:
    1,565
    I guess I missed the whole point of the problem, unless your plan all along was to repack and sell.
    If it wasn't what would be the problem with installing the software and making some music?

    Seems to me you didn't highlight a very important part in the agreement which was
    "The Licensee may broadcast and/or distribute, commercially or otherwise their own musical compositions that were created using the Output and are otherwise authorised"

    To me the bigger issue is the software giving the same bad rhythm to different people and a judge having to decide who owns what.
     
  14. b-r@nno

    b-r@nno NI Product Owner

    Messages:
    163
    this are (IMHO) the usual agreements that come with an library/samplepack and so on. for me, an important part if the text is the following which you didn't highlight: "...on a standalone basis as part of...".

    for me as a "semi-lawyer" (i am not a lawyer but know lots about laws / liability and so on) this is just meant that you are not able to randomly creat any melodies and sell them as your own copyrighted material. but you (so i think) ofcourse can use the output in a "non standalone way" in your compositions...

    does this make any sense? (i am a native german speaker...).
     
  15. lwj|localspace

    lwj|localspace NI Product Owner

    Messages:
    364
    Reads to me like a fairly standard clause for this kind of product. You can use it in your music without restriction but what's prohibited is to just let it generate stuff for you and then sell that as sample packs for instance. Pretty normal. Twisted Tools ensembles like S-layer have the same clause...
     
    • Like Like x 3
  16. Deafkon

    Deafkon NI Product Owner

    Messages:
    136
    I wanted to clarify that this tool doesn’t draw from a pool of pre programmed midi files, rather it procedurally generates infinite combinations of melodies based off an algorithm. It also isn’t an assortment of presets nor does it make any sounds of its own. It is a midi generator that needs to be connected to a synths channel input.

    Also, the “melodies” it creates are not unique to this device, its just procedurally smashing random notes in a scale together with random timing. It creates organized chaos that sometimes results in a pleasing melody.
     
    • Like Like x 1
    • Informative Informative x 1
  17. lwj|localspace

    lwj|localspace NI Product Owner

    Messages:
    364
    Yeah S-Layer does that with samples (similar to polyplex if you’re familiair with that). What they’re afraid of is people just letting it run to generate a bunch of samples for them (or midi patterns in this case) and then sell those as sample packs of their own. That’s what ‘stand-alone’ means in this context.

    So if you use it for your music there’s nothing to worry about. Technically, adding as much as a hi-hat will make it your composition. It would be very hard and expensive for a small company to even check and enforce it.. and there’s a lot of grey area. So read it like: hey, don’t be a cheap asshole and have fun!
     
    • Funny Funny x 1
    • Informative Informative x 1
  18. Deafkon

    Deafkon NI Product Owner

    Messages:
    136
    Perhaps what I am misunderstanding then is the legal definition of a "sample pack" (if such a legality exists). I think of samples as audio loops, but I suppose they could be considered midi samples as well.

    In the case of outputting a midi melody, running it through a synth, changing a few notes, timing, or both, adding an fx and selling as a sample; would that be permissible?
     
  19. lwj|localspace

    lwj|localspace NI Product Owner

    Messages:
    364
    There’s no legal definition for samples, so it’s a bit of grey area. There’s also a big gap between what’s legal and what’s enforceable. Like in this case.. they’d have to prove that you used their software, which is practically impossible (you just say you didn’t) already. And then they’d have to argue that you did not make it part of ‘a work’ of your own, that’s where it gets really vague. “I added a hi hat, yer honer. It’s what I do. It’s my style... minimal, you know?”

    As for your example, I think you could argue that’s permissible too, especially since this thing just outputs midi patterns not audio. You could argue that a random or randomized output can’t be claimed as their intellectual property. Scales definitely aren’t anyone’s intellectual property.

    So that’s why you shouldn’t worry.. it’s a legal quagmire nobody wants to get lost in ;) That clause is simply there to stop people from just converting it into sample packs (or whatever) and making money of their work.

    For a better explanation, there’s a whole bunch of commercial sound designers on KVRaudio. They’ll know all the legal ins and outs of this, and how it works in practice.
     
    • Like Like x 1
    • Informative Informative x 1
  20. D-One

    D-One Moderator Moderator

    Messages:
    6,700
    Who would buy 1000 MIDI files with a bunch of random notes anyway?

    If people do buy that then I'll just set my KK-MK2 to a scale, randomly smash the keyboard for 10 mins, quantize it, then slice the MIDI into 4 bar loops and sell it, if anyone is interested then contact me, it's only 10$ a month at randommidiloops.com, I haz 10% off coupons.
     
    • Funny Funny x 4
    • Like Like x 2