Re: [asa] Darwin only biological evolution? (can anything exist without evolution?)

From: David Opderbeck <>
Date: Tue Jan 13 2009 - 13:42:31 EST

Iain said: * is that even if this "evolution of the meme" occurred when
Martin was completely unaware of it (that he had inadvertently copied an
idea), then legally it is still the case that a plagiarism suit could
succeed, and Coldplay would be liable to pay some portion of the substantial
royalties they received
from the song to Satriani.*

I respond: Under U.S. law, copyright infringement requires proof of
copying. Therefore, if Martin really composed his song without copying
Satch, then there is no infringement.

You can prove infringement in two ways: (1) direct evidence (e.g.,
testimony that there was in fact copying); or (2) by inference from
circumstantial evidence comprised of "access" and "substantial similarity."
"Access" means the alleged infringer had access to the work. That probably
would be easy for Satch to prove if his song was available on CD's, on the
radio, etc. "Substantial similarity" involves a qualitative and
quantitative comparison to determine whether an ordinary observer likely
would think the allegedly infringing work copied from the original work.
For musical works, "substantial similarity" can be tricky, because you must
exclude from the analysis common licks and chord progressions. No one can
monopolize the I-IV-V progression or the minor pentatonic scale in rock
music, for example.

Now, if musical forms are "memes," then this whole exercise under copyright
law is rather silly. There is never "copying" in the sense of a human agent
acting in a way that violates some legal entitlement. There is only a poor
little meme struggling for survival. Perhaps I can write a paper on how
mimetics dispenses with intellectual property law altogether. :-)

David W. Opderbeck
Associate Professor of Law
Seton Hall University Law School
Gibbons Institute of Law, Science & Technology

On Tue, Jan 13, 2009 at 3:53 AM, Iain Strachan <>
> On Tue, Jan 13, 2009 at 2:27 AM, D. F. Siemens, Jr.
> <> wrote:
> > I think there is more of an analogy between Beethoven and organic
> > evolution than allowed by Iain. He mentions some sources that were
> > incorporated into the symphony. It appears that parts of bacterial
> > genomes were incorporated into other bacteria as well as into eukaryote
> > nuclei and cytoplasm. If the one is evolution, seems that the other one
> > is too.
> >
> I didn't say (sighs deeply at how many times I start a post with "I
> didn't say"), that there were no analogies with evolution to be found
> in music. I was responding to Bernie's (IMO overstated) claim:
> ---
> I don't think there are any examples what-so-ever of anything that has
> not evolved. If you can think of just one, give an example, and I
> think I can explain to you how it evolved.
> ---
> I asked him to explain how Beethoven's Ninth Symphony is supposed to
> have evolved. Bernie singularly failed to do so. He explained how
> the piano evolved (though there is no piano in Beethoven's Ninth
> Symphony), and how ideas might have evolved from earlier ideas (which
> I don't dispute). But he asked for ONE EXAMPLE of something that
> didn't evolve and claimed to be able to explain how it did. I gave
> him one example - a specific work - it didn't have to be Beethoven's
> Ninth, and asked him to explain how IT evolved as an entity.
> Evolutionary processes are evident in, for example the development of
> a composer's style through time - the way a composer begins probably
> by writing music that is derivative or other composers, and then over
> time, develops his/her own distinctive "voice" - which probably comes
> down to preferred motives, chords etc - which is analogous to a kind
> of natural selection. One may even observe processes analogous to
> evolution in the progress of an individual piece of music; sonata form
> movements have a "development section" where the main ideas are
> "developed" (evolved?) changed, possibly rhythmically or melodically
> altered, played against one another in increasingly complex
> arrangements.
> But it is just not helpful to suggest that the Ninth symphony, as an
> entity, evolved. (Or that ANYTHING can be shown to have evolved).
> It's not as if Beethoven started with the Eighth symphony, made a
> series of successive revisions, and arrived at the Ninth. But such
> processes ARE evident in the evolution of software - successive
> releases of a software product ARE incremental changes as bugs are
> fixed and new features are introduced (consider, for example how
> Google has evolved).
> Returning to music, a very interesting example has recently emerged
> that might be of interest to David O's legal mind, and perhaps serves
> as a focus for discussion of the Design vs Evolution debate.
> The British band Coldplay are currently facing a legal suit for
> plagiarism from the US guitar virtuoso Joe Satriani. Satriani is
> claiming that in their 2008 hit single "Viva la Vida", they have
> copied a substantial original portion of a song he wrote in 2004 "If I
> could fly". Listening to the relevant section, which is the main
> theme in the Coldplay song, it is indeed virtually identical to a
> passage early in the Satriani song - all the notes are the same
> (though transposed into a different key); the rhythm is the same and
> the chord sequence is virtually the same (there is one chord that
> differs, and this is a standard transposition that would give the same
> emotional effect).
> Chris Martin of Coldplay is claiming that this is a complete
> coincidence - that he composed the tune himself being quite unaware of
> the original song.
> So both artists are claiming, in effect that they created the tune de
> novo. However, the possibility arises that Martin could have heard
> the Satriani song, maybe in the background somewhere, and that the
> tune stayed in his subconscious, and emerged during the compositional
> process (slightly mutated into a different key and with a slightly
> altered chord sequence). Thus Satriani's "meme" could be said to have
> mutated and reappeared in the Coldplay song.
> The fascinating thing about this (and this is where I would be
> interested to hear David O's opinion), is that even if this "evolution
> of the meme" occurred when Martin was completely unaware of it (that
> he had inadvertently copied an idea), then legally it is still the
> case that a plagiarism suit could succeed, and Coldplay would be
> liable to pay some portion of the substantial royalties they received
> from the song to Satriani.
> I have experienced something similar to this in composing poetry.
> More than once it has been the case that I have written a line and
> genuinely thought I had dreamt it up myself, only to realise a few
> weeks later that the line contained a phrase from a poem I was already
> familiar with.
> Which would mean that evolutionary processes are a considerable
> problem for any would-be musician thinking of entering the pop
> industry.
> Iain
> > I am unfortunately not familiar with Beethoven's manuscripts, but I am
> > guessing that the original drafts were subject to alteration to ensure
> > their improvement. Is this all that distant from the alteration of
> > genomes under the influence of natural selection? Did Beethoven ever
> > start to make a change and remove it? If he did, we can expand the
> > analogy.
> >
> > However, usage does not favor the application of terms too broadly,
> > though it is common for axe grinders to deliberately expand usage to
> > press a point. Others simply test a change for effectiveness. If we go
> > back far enough, I think that "evolution" was narrowly applied to
> > embryonic and fetal development, which I have not encountered recently.
> >
> > Additionally, I have encountered claims that most of the technical
> > language of science is "dead analogies". So the problem may involve
> > analogies one will tolerate or understand. One person's relevant analogy
> > is sure to be another's nonsense. In attempting general persuasion,
> > probably the best procedure is to stick with generally accepted
> > analogies.
> > Dave (ASA)
> >
> > On Mon, 12 Jan 2009 22:30:08 +0000 "Iain Strachan"
> > <> writes:
> >> On Mon, Jan 12, 2009 at 10:15 PM, Michael Roberts
> >> <> wrote:
> >> > In fairness to Bernie, he is trying to present an alternative to
> >> YEC which
> >> > he escaped from. He is seeking to put this over to his fellow
> >> Christians who
> >> > are/were caught up with YEC and in terms they can understand. In
> >> that I
> >> > totally support him.
> >>
> >> Yes, but is it really going to persuade YECs to suggest that there
> >> is
> >> an evolutionary explanation to EVERYTHING?
> >>
> >> Patently Beethoven's Ninth Symphony did NOT evolve. Some of the
> >> ideas
> >> were derived from the Choral Fantasy, but the notion that the one
> >> evolved out of the other is ridiculous. It was put together by a
> >> creative genius, and some of the ideas in it were regarded as
> >> totally
> >> revolutionary. (The "r" makes a difference).
> >>
> >> There is just no way you can liken it to evolution. YECs object to
> >> "evolution-ism", and suggesting that everything evolved like that
> >> is
> >> precisely what they object to.
> >>
> >> Iain
> >>
> >> To unsubscribe, send a message to with
> >> "unsubscribe asa" (no quotes) as the body of the message.
> >>
> >>
> > ____________________________________________________________
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> >
> >
> --
> -----------
> Non timeo sed caveo
> -----------

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Received on Tue Jan 13 13:43:05 2009

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