Court Rules Breadpig Band Isn't Actually Making Music (WTF?)

This shit just got serious. Now the DOJ wants a piece of breadpig. If you're not familiar with the breadpig band, educate yourself and return to this post - we won't hold it against you.

A breadpig ally at Harmonix (they make our instruments) named Matt kindly brought this to our attention in early March. We would have brought this to your attention sooner, breadpig loyalists, but we needed our legal experts to analyze this before we proceeded. This ruling makes "the Court" seem rather out of touch -- as if they hadn't downloaded our debut album When Will Then Be Now? from iTunes. Maybe they're the one who gave us a 2-star review (our only one in a parade of 5-star glory).

Here's a blurb. Read the entire damning PDF:

It is clear to any reasonable reader that the patent term “musical sounds” has a narrower meaning than that proposed by Gibson’s expert. Electric guitars and acoustic guitars are capable of producing some variety of sounds that are distinguishable, without additional processing, to the naked human ear. Gibson’s own expert admits that this is an important feature. Gibson’s expert also states that musical sounds have identifiable qualities such as “timbre” and “pitch.” Indeed, Gibson’s expert discusses at length various characteristics that “musical sounds” might have. Freeman Depo. at 31-40.

Gibson concedes that the guitar-shaped controller does not literally produce “musical sounds.” Gibson must concede the point because, for example and without limitation, the clacking of buttons as they are struck are (1) insufficiently varied or distinct; and (2) no reasonable person could say that any musical sounds heard during standard operation of a Guitar Hero controller come from the controller itself. Cf. Cl. Const. at 11 n.11 (discussing a hypothetical stereo button). Gibson’s concession on this point, however, is in tension with Gibson’s position on the drum-shaped controller. Gibson contends that the surfaces of the drum-shaped controller produce “musical sounds” even though they create, at most, thuds little more distinct than those one could produce by tapping a pen on a table. Summ. J. Hearing Tr. at 45:9-46:16, 56:22-57:6; Freeman Depo. at 40:15-41:10. There is no principled distinction between the clacking of a button and the dull thud produced when a plastic or rubberized drum-shaped controller is struck. True, striking a table or drum-shaped controller at different locations will produce somewhat different sound waves because the vibrations will differ based on where on the controller’s surface the force originates. True also, the degree of force should have some effect on the surface’s vibrations. But the same holds for striking a button at one position on a controller’s handle versus a button at another position; and for striking the same button at different velocities.

From the foregoing, the Court concludes that musical sounds must have more articulable characteristics than a button’s clack or the thud produced from striking a table, piece of rubber, or piece of plastic. A musical instrument must be capable of making, without additional processing, some variety of distinct sounds that can be sensibly described as having some or all the characteristics Gibson’s own expert discusses in his deposition. The Court observes, but does not conclude, that musical sounds may not need to be as complex as those the ’405 Patent’s only examples—guitars—and that musical sounds may not need have every characteristic discussed by Gibson’s expert, such as “timbre” and “pitch.” There is no reasonable dispute of material fact that Guitar Hero controllers do not themselves make musical sounds within the meaning of the patent. In fact, Gibson concedes literal noninfringement on the guitar-shaped controller. Even the recordings submitted by Gibson—where a player seems to exert some effort to strike the drum-shaped controller at different velocities such that the volume will correspond to features of the music the game console plays—cannot be musical sounds within the meaning of the patent. Vosburg Exh. 4.