Open Source Licenses For Musical Instruments

I, as they say, am not a lawyer. But I’ve formed some definite opinions (and no small amount of confusion) while researching grid sequencers.

My fascination with electronic noisemakers has introduced me to the world of microcontrollers. These noisemakers (and all devices built around microcontrollers) blur the line between hardware and software (being a combination of both). And this creates some interesting challenges in the area of licensing.

Most commercial software is licensed and not sold. When you “buy” Microsoft Windows, you are purchasing the right to use that software on a computer, not the software itself. The license is created to limit what you can do to that software – you can install it on one computer, but you cannot make copies, sell it to other people, etc. For the most part, these terms are redundant with standard copyright law. Some of the more restrictive software licenses also prohibit things, such as reverse compiling, that would allow you to figure out how the software works.

Traditional software licenses do not generally limit what you can do with the software. If you properly license Microsoft Excel, they don’t try to prohibit you from modeling a business plan for your company that makes business productivity tools. Or if you license Photoshop, they don’t tell you that you can’t design a logo for your graphic company logo, or counterfeit currency.

Local laws would, presumably, prevent you from doing that last one. Of course, laws should prevent you from making illegal copies of software, but they still put these terms in the license anyway.

Some software is licensed differently for particular uses. Personal, educational, and non-commercial uses are often free or cheap, whereas for any commercial uses, a more expensive license must be purchased. CadSoft Eagle, the printed circuit board design software, is an excellent example of this.

Free and open source software is built on a different premise. Licenses like the Gnu General Public License (GPL), Creative Commons, and Copyleft are built on giving users the right to modify and distribute software and other works.

Software-oriented open source licenses are still generally concerned with what you can do to software: you can install it, modify it, copy it, and what you must do when redistributing it. They do not, as far as I can tell, have anything to say about uses of the software.

One of the key features of the Creative Commons licensing is the optional Noncommercial condition, which prohibits commercial distribution of the work or derivative works. Creative Commons is primarily intended for licensing of creative works. They are not specific about what they consider to be a creative work, however. Many would consider computer code or an electronic circuit to be a creative work. But the examples of CC license uses are video, photographic, musical, and written works.

The situation gets murkier when it comes to hardware. The Monome project considers itself open source, in that they make schematics and microcontroller code available for those who want to build their own Monome. On their website, they mention the lack of suitable open source hardware licenses:

there is currently not a suitable widely used license for open-source hardware, but we request thoughtful consideration if you consider having derivative parts manufactured. we absolutely prohibit the use of companies who take advantage of questionable governments with loose or nonexistent labor and environmental laws. local, high-quality manufacturers exist who are environmentally responsible and provide living wages to their workers. seek them out. help make positive change by supporting sustainable businesses and local economies.

They also make the source available for non-commercial uses. But what does this actually mean? it’s a highly-interpretable term, particularly in this case. And they don’t really define it.

The MakerBot Cupcake CNC is released as open source hardware, but they haven’t chosen a particular license. They explain it here.

The short version is that they prefer you buy the MakerBot kits directly from them, but they provide enough information to build one without purchasing a kit. If you modify the design, you must distribute the modification details. If you build Makerbots to sell them, you have to “license” it (which probably means paying a portion of the revenue to MakerBot Industries).

Most open source software licenses, especially GPL, are based on the idea of the software being free. The overhead costs of distributing software is typically trivial, so free distribution is realistic. But the MakerBot kit costs $750 for a reason – there are a lot of physical parts that go into it which must be purchased.

MakerBot Industries buys the parts in quantity to cut down on individual cost – something that a single person could not justify doing if they only wanted to build a single MakerBot. But if someone were to set out to sell dozens or hundreds, and were willing to do so at little or no margin, or with cut-rate parts, they could probably undercut the official MakerBot kit price. MakerBot Industries understnadably doesn’t want to provide a competitor the plans to hurt their business.

Although the MakerBot is built on the work of the RepRap project (to which Bre Pettis and the other MakerBot founders contributed), a great deal of time, energy, and money went into the MakerBot kit design itself. These costs are less tangible but no less real than the plywood, microcontrollers, and wires that go into the kit, and they deserve to be reimbursed for them.

In any event, it is perfectly reasonable for MakerBot to want to protect their business. That is the only use the license addresses.

The MakerBot is a tool. It prints three-dimensional objects. They do not prohibit you from printing any particular object. They might not particularly like someone using their MakerBot from printing parts for, say, a weapon, but they don’t tell you can’t use it for that purpose.

Monome is in the business of selling minimalist computer interfaces. It is perfectly reasonable that they would not want someone taking the “source” information, building cheap knock-off Monomes, and selling them cheaper than originals, hurting their business. (I would suggest that in their particular case, Monome is doing more damage to their own business by not making enough devices, but that is another story.)

The Monome is an interface, and when used with the right software, it is a musical instrument. Any musical instrument is a sort of tool, like the Makerbot – only it makes music instead of three-dimensional plastic items.

The Monome license is not clear on what non-commercial means. One could construe it to mean that one was not allowed to produce music with it that one intended to sell. This sounds preposterous on its face – no luthier sells guitars with the understanding that you can’t play it at a paid gig or use it to make an album. But what happens when we stretch the definition of “instrument”? But what happens when you blur the lines between instrument and content?

Brian Eno and Peter Chilvers have released a series of generative music apps for the iPhone – Bloom, Trope, and Air. Are these musical instruments? According to their web site, you must license them if they are to be used in musical compositions.

Bloom in particular, is an interesting case. It has a “listen” mode which generates music all on its own, with little or no input from the listener. Some of the “moods” available in this mode effectively re-create Brian Eno albums (most of his ambient albums are generated in a similar way). I can easily see them wanting to prevent me from recording 35 minutes of Bloom in “Neroli” mode and selling that as my music. Because it’s not.

But in “freestyle” mode, Bloom is almost completely user-controlled. There is a continuous drone which doesn’t go away, but the music created is otherwise completely in the control of the user. The app is simply controlling the generation of the tones (which is exactly what a traditional musical instrument does) and providing a decaying loop effect (which could be done with a old-school tape loop device or a more modern effects pedal or even software filter). So, in this mode, is Bloom an instrument?

The Nintnedo DS cartridge Electroplankton is a similar situation. You interact with objects on screen (clicking on them or drawing lines or modifying the environment) and the virtual creatures make music in response. Is this a musical instrument or is it a video game (albeit a game with no points or object)? There is no indication in the Electroplankton booklet that they don’t want you using it as an instrument, and I have seen it used as such. I have used it as an instrument.

In both Bloom and Electroplankton, the programs generate a fixed (though large) set of sounds. These programs’ authors may feel that these sounds are content – each sound a tiny (simple) musical composition, and are thus protected under copyright. They could consider Bloom and Electroplankton to effectively be albums that are different each time you play them, and which are dynamic based on user input. This is not a crazy (or new) idea. But given their complex and active user interfaces, this is not immediately obvious.

Many of those same Electroplankton sounds are present on the Tenori-On, and all indications are that they consider the Tenori-On to be a musical instrument. So is there a difference? Of course, they make more off a $1000 Tenori-On than they do a $40 Nintendo DS cartridge. (Electroplankton is no longer available, but the individual “games” form it are available for download – for $5 each – to the Nintendo DSi.)

I have plans to build electronic noisemakers of my own design, and will consider making the plans available as open source. If I do, I will need an open source hardware license which provides the distribution and modification notions of GPL and the non-commercial and share alike options of Creative Commons. I may need to attempt writing my own. Use of these noisemakers as instruments will be explicitly unrestricted, even if the commercial production and sale of devices themselves are not.

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