Earlier this week, a Twitter user by the name of Tom pointed out that Guatemalan trap producer Carnage had allegedly used a cracked version of the popular synth software Sylenth in a tutorial video for Razer Music.
Of course, big name DJs getting called out for cracked programs isn't something that out of the ordinary: Torrent Freak posted an extensive list of offending producers earlier this year that included Avicii and Martin Garrix. What's different about Carnage's scenario is that the developer behind Sylenth, Lennar Digital, actually got into the mix with him on Twitter, pointing out the producer's egregious copyright violation.
Most people know by now that illegal downloading can get you prosecuted. However, in the case of cracked musical software, copyright law becomes even more convoluted. Sample packs and synths are invariably bundled with license agreements that lay out the terms of how the software and samples can be used—a cracked copy voids this agreement, complicating ownership not only of the software itself, but of any subsequent music created. To help clarify Lennar Digital's claims and explain the copyright issues in this situation, THUMP Spoke to Jesse Morris, a music lawyer in Los Angeles.
Disclaimer: this is just a conversation and shouldn't be taken as actual legal advice.
THUMP: What's the crux of Lennar's accusation?
Jesse Morris: When you use a sample library or a synth plugin-in, they have an end user license agreement (EULA) that you agree to when you download it. So, first off, if you illegally downloaded it, then you don't have the right to use the synth in the first place.
If Carnage is using a cracked version of their software what does it mean that he doesn't have any copyrights?
There are two different types of copyright in music: the song and the recording. Then, in this case, there is a copyright going on with the source code and the actual programming for the synth. So there are three different copyrights that are happening here.
If you actually download the software legally, you agree to that EULA. It will have language about sound recording [the samples themselves] copyright. If, for example, there is a drum sample library, there is a copyright in the recording themselves.
If you're using a synth and the EULA says that you can't use the sound recording copyright, you can still technically use it to write a song with, so long as the musical composition is copyrightable. So Those are kind of all the moving parts that are happening here.
What is Lennar Digital actually threatening here, beyond pointing out that Carnage has downloaded this program illegally?
Potentially they are also threatening his use of the sound recording copyright, because he wouldn't have permission to use their samples. Maybe if it's his own music, then he would own the song, but he wouldn't be able to do anything with the recordings because he didn't have permission to use the sound recording.
If you don't download the synth legally, you never got that permission to use those sound recordings. Think of a DJ that loves a drum sound on another track and just rips it off: you've got to get permission, otherwise it's copyright infringement. So, it's a similar thing here.
So, potentially, what kind of legal action can Lennar Digital take?
Potentially, a copyright infringement lawsuit and or a variety of other business claims, or even criminal theft for stealing something.
You see some pretty outrageous numbers thrown around when people get prosecuted for illegal downloads. Could we see similar damages here?
In the US, if you've properly registered your copyright with the Copyright Act, you can get statutory damages up to $150,000 per infringement, which is the maximum statutory penalty. That's why you're going to see those outrageous numbers in the headlines. If you download a hundred tracks, that could be up to 15 million dollars.
You've seen it in the news. It's up to the owner of the copyright to decide how much they want to enforce it and what damages they really want to go for.
Usually in the initial cease-and-desist letter they will ask for the biggest purse possible to enforce and police their own copyrights.
Read more about Jesse Morris' law firm at his official website.