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Behringer vs. Mackie

 
 
Geoff Wood
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      01-17-2004, 03:49 AM
Noiseboy wrote:
> In article
>
> First circuit diagram copyright case under CDPA 1988
> Mackie Designs Inc v Behringer Specialised Studio
> Equipment (UK) Ltd (unreported, 23 April 1999) is
> the first High Court decision on one aspect of the
> protection of circuit diagrams under the Copyright
> Designs Patents Act 1988 (CDPA).
>
>
> "The circuit diagrams were, in the judge's view,
> aspects of the design of the electronic circuitry and
> therefore fell within the definition of "design
> documents". As such, copyright protection could not
> be invoked for the circuit diagrams.
> The judge concluded that the defendants had copied
> an article made according to the circuit diagrams.
> Therefore, under s 51(1), there was no infringement
> of copyright in the circuit diagrams. He remarked
> that the words of s 51(1) related to any act of copying
> of the article, whatever the result of the copying."


Judges are obviously pretty useless at reading circuit diagrams then ,
because according to somebody who George P who has perused both schematics,
they are quite dissimilar.....

geoff


 
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George Perfect
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      01-17-2004, 01:00 PM
In this place, Noiseboy was recorded uttering these words:
> Following is a link that takes you to a law firm's review of
> intellectual property law.
>
> http://www.lovellwhitedurrant.com/co...ubIssueId/1178
>


[... article extract snipped ...]

>
> Please note that the judge concluded that the defendents had
> copied an article made according to cirtuit diagrams. However,
> copying the circuit shown in the diagrams was not a violation of the
> law.


Intellectual property law is a large bowl of spaghetti - find the end of
any strand and head in - it's awful hard not to get lost!

With apologies to those who have seen me post this before, here's an
extract from an article by independent journalist, Tessa Dunlop, on the
same subject, that gives a more detailed report of the case and the
judge's findings. I have previously posted the full text of the article
so anyone can go look that up if they don't trust this extract, which is
presented unedited.

"The case of Mackie Designs Inc v Behringer Specialised Studio
Equipment (UK) Ltd & others (1999) R.P.C. 717 brought this
sharply into focus for the American company Mackie last year.
Mackie brought a case of copyright infringement in the English
High Court against three defendants who had copied the circuit
diagram of a mixer manufactured and sold by Mackie. A mixer
is a piece of electrical equipment used in sound recording/
amplification.
Mackie alleged that the second defendant, Mr Ulrich Behringer,
had acquired a Mackie mixer and analysed the circuits in it,
producing a "net list" of its components and their
interconnections. From that, a computer program was used
to produce layouts for circuit boards to be manufactured by
the German company Behringer Spezielle Studiotechnik
GmbH, the third defendant. These were then sold in the UK
by the first defendant, Behringer Specialised Studio Equipment
(UK) Limited. This, Mackie argued, indirectly infringed the
copyright in the circuit diagram for the mixer which had itself
been drawn by an American citizen in 1993.
To understand the situation it is first necessary to understand
that two separate rights were potentially relevant to the case:
copyright and design right. Design right exists to protect
industrial designs, or designs which are industrially applied.
Design right is derived from an original design. The design
must be recorded either in a design document or by an article
being made to the design. Mackie was relying on a circuit
diagram. A design document is:
any record of a design of any aspect of the shape or
configuration (whether internal or external) of the whole
or part of any article, other than surface decoration,
whether in the form of a drawing, a written description, a
photograph, data stored in a computer, or otherwise.
There was no UK patent, and no UK registered design for the
Mackie circuit board or its layouts. Indeed it is thought it
would not have qualified for a registered design because it
would not have been designed to appeal to the eye. It might
or might not have originally qualified for patent protection.
Before the introduction of the Copyright, Designs and Patents
Act 1988 ("CDPA") industrially applied designs were protected
in the UK by copyright. The CDPA states however in section
51 that if a design document, or model, recording or
embodying a design is copied in the making of an article, then
(subject to certain exceptions) that will not be an infringement
of any copyright. Instead it may in the right circumstances be
an infringement of design right.
However, Mackie needed the judge to find that by indirectly
copying the circuit diagram Behringer had infringed copyright
rather than design right because in the circumstances the design
document of Mackie's mixer circuit did not qualify for design
right protection. Qualification for copyright protection is
simpler and more automatic because of the international
conventions governing it. There are no international
conventions on design right which is basically an EU creature.
The judge held that even though the circuit diagram was an
artistic work and so protected by copyright from acts of copying
such as photocopying it, it was at the same time a design
document. Perhaps rather self evidently he also found that it
was not a design document for an artistic work. If it had been,
then it would have been an infringement of copyright to make
three dimensional representations of the mixer circuits.
Because it was an ordinary design document Behringer could
not have infringed any copyright in it by making 3-D articles
to the design. Section 51 applied."


Please note:

1) Mackie did not allege direct copying of its circuits or diagrams -
rather it alleged that its circuit had been analysed to produce a "net
list" - from which a computer program had been used to generate
Behringer's different circuit and PCB layouts. (to Geoff Wood and
others, can we now finally lay to rest the claim that these circuits are
identical? Even Mackie wasn't daft enough to claim that).

2) Mackie's lack of recognised IP rights is clearly established.

3) Mackie's circuit diagrams were found NOT to qualify as a registered
design. Nor were they subject to patent protection. The product itself
did not qualify for protection.

4) Mackie - or its lawyers - were wise enough not to make claims about
"look and feel" (in relation to the cases, control layouts or PCB
layouts or anything at all). If you read the contemporary reports of the
subsequent U.S. court case you'll understand why. (Geoff and others
please note)

5) The judge in this case did NOT compare the two circuits. There was no
need to do so as Mackie failed to establish it had any rights to
protection in any event.

6) The morality of Mackie's tactics in this whole sorry fiasco can best
be seen by the fact that it alleged that Uli Behringer himself had
personally copied its circuits. No evidence was presented to support
this extraordinary claim. The effect of joining Mr Behringer to the list
of defendants was, however, to cause him considerable personal expense
and trouble as he had to appoint his own legal advisers to defend him
personally. Can we just remember that this is a dispute between two
large companies - to personalise such a claim in this way is more than
bad form.

7) Mackie had no good reason to bring a claim in the English courts -
even if it had won, any damages it may have been awarded would have been
limited by its potential loss of profit in the UK. As its 8-buss hardly
troubled the music stores of Britain, IMHO the highest damages it could
have obtained wouldn't have paid for the air-fares across the Atlantic.

8) Nicola Dagg's article (which I hadn't seen before, so thanks for
providing it) appears to misrepresent the judge's finding on whether
Behringer copied anything. The relevant section from Tessa Dunlop's
report (English Law Review) is: "The judge held that even though the
circuit diagram was an artistic work and so protected by copyright from
acts of copying such as photocopying it, it was at the same time a
design document. Perhaps rather self evidently he also found that it
was not a design document for an artistic work. If it had been,
then it would have been an infringement of copyright to make
three dimensional representations of the mixer circuits.
Because it was an ordinary design document Behringer could
not have infringed any copyright in it by making 3-D articles
to the design." The relevant point is, I believe, the judge's finding
that IN THE GENERAL CASE if someone photocopies a copyright document
(which Mackie's circuit diagram is - as is Behringer's own circuit
diagram, please note) that would be an infringement. But to create a
product from a circuit diagram is not an infringement - unless that
circuit diagram represents something that is itself protected by design
right, patent or other recognised protective mechanism. Two things are
therefore apparent: Behringer's circuit diagrams presented in its
manuals are NOT copies of Mackie's designs (as I know from other sources
was part of Mackie's claim) and; it is further confirmation that Mackie
owned nothing proprietary in its mixer - its much proclaimed preamp
design shown for the severe case of marketing hype that it really is.



I have described Mackie's claim as awfully thin.

As you can see from this report, it could not possibly claim that
Behringer's product was a direct "clone" of its mixer. Neither could it
claim any proprietary rights in any part of its circuit - for the good
reason that all of its "LEGO-bick" circuit blocks were in the public
domain. It attempted to bamboozle a court by alleging "indirect
copying" of its circuit - via an awfully tenuous mechanism at that.

There's a lot more where this came from, but I am convinced there was no
merit at all to Mackie's claims.


>
> I would conclude that while Mackie did not have a sound legal case, they
> did have the moral high ground.
>


I disagree with your conclusion. Mackie was not trying to protect a
circuit or anything it owned or had any proprietary rights in at all (as
shown by the details of the claim and the finding above). It tried to
manipulate the legal system - in an underhand, devious and rotten way -
to gain competitive advantage. Specifically to inflict the maximum
damage possible to a competitor (the first it had seen) and retain its
monopoly position.

If you read the following article in the document you refer to, it's
plain that under the CDPA (the UK legislation that enacts EU-wide
copyright and design rights) it is NOT necessary to show that an
infringing article is a "clone" or identical in every particular.

The failure of Mackie's claim is, therefore, thrown into sharper relief
again as it obviously failed to persuade the judge that Behringer's
mixer even came close.

This same scenario was then played out in the U.S. courts a short time
later.

For Mackie to have had any claim on moral high ground, there would have
to be something more than hype behind its advertised description of its
products, it would have had to own something unique or original inside
those products and - here's the bit I find most significant - it would
have had to pursue its claim in a moral fashion.

Let the record speak.


One final note: Please understand that these reports are written for the
legal profession as part of the mechanisms that communicate cases that
establish legal precedence. Some attributes are taken as read - example
in Ms Dunlop's report where she writes "... three defendants who had
copied the circuit diagram ..." she is referring to Mackie's CLAIM - and
not the judge's finding - the rest of the report making it clear that no
copying took place.

IOW, you do have to read these reports carefully - and ideally with a
law professional's mind set - to properly understand what is being said.


--
George
Newcastle, England
(Please remove leading 'NOSPAM' to reply by email)

Problems worthy of attack
Prove their worth by hitting back - Piet Hein
 
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Preben Friis
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      01-17-2004, 03:27 PM

"Geoff Wood" <(E-Mail Removed)-nospam> wrote in message
news:aHINb.17551$(E-Mail Removed)...
> Preben Friis wrote:
>
> I sell microphones, some of which are relatively "low-cost". As far as I
> know I have never sold a mic made in China, or with a Chinese capsule, or
> that looks like a U87 (or whatever) , if that's important to you.


I can see, that you carry the Studio Projects and Røde line of microphones.

Quote from the Studio Projects site:

"Studio Projects partner company, 797 Audio, has a long history (more than
40 years) in the production of professional microphones."

797 Audio is located i Beijing ... case closed.

Most Studio Projects branded microphones are made to look like a Neumann
models... case closed.

More from same site: "No, we are not a German mic, but we sure do sound like
those $3,000.00 models."

By your own standards Røde NT2, wich has been manifacured with chinese
capsules, are made to look like a U87 to me. ... case closed.

> Why are Behringer-defenders and Mackie-haters just such nice people ?


Why do you have such big problems with facts, and why do sell products made
by principles you seem to despite so much?

Best regards
/Preben Friis


 
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Mike Rivers
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      01-17-2004, 04:21 PM

In article <zEUNb.48827$(E-Mail Removed)> http://www.audio-forums.com/(E-Mail Removed) writes:

> I will be intrested in the # of preamps and the card slot config/outboard
> support gear


24 mic/line inputs with 4-band parametric EQ, compressor, gate, and
high pass filter. 8 line-only inputs without the dynamics. In addition
there's an ADAT Lightpipe input and output, and a couple of AES/EBU
inputs and outputs. No card slots that I can remeber, all the I/O is
on board, hook up whatever outboard gear you got. It has four internal
effect processors. One place where I think they missed out is that the
Lightpipe output is assignable to the group or matrix outputs and
can't be assigned to the auxiliary sends, so you can't use it to feed
a multi-channel effect proscssor such as the Kurzweil KSP-8.

> do you have a link to this desk


I haven't checked to see what they have on the Mackie web site yet.
You can find it from there if there's anything up yet.

> and Is it a "real" product not just a "concept" aimed at stopping people
> from buying currently shipping stock


It was mostly working, though there were still some bugs in the LCD
that were apparent. I didn't check all the inputs and outputs though.
I know that they were working on it back in June, so it wasn't just
thrown together for the show. I doubt that it will stop anyone from
buying what's available now if they need it now. Live sound people
aren't as indecisive as home studio people. And I suspect that Mackie
would resent the accusation that it's a phony announcement designed to
freeze the market. Nobody's consciously done that since the ADAT,
though there have been plenty of delays that might have made it seem
that way.

> I have a dm1K on order but have not taken delivery yet
> so this is a very timely question


If you need it, buy the Yamaha. They said April, but don't book any
shows with it. Live sound is one place where you don't want to
discover a bug during a show, and it will take a while for them to get
worked out and for you to get comfortable with it.




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Mike Rivers
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      01-17-2004, 04:21 PM

In article <(E-Mail Removed)> (E-Mail Removed) writes:

> If you don't like A&H, what's wrong with Tascam. They had 8 buss
> consoles on sale before Mackie (the company) was born.


I have nothing against A&H in general, just those two pieces that were
the subject of the message. TASCAM (and a lot of other companies) had
8-bus consoles before Mackie, but they cost more. You're pointlessly
trying to dredge up ancient history here and my memory isn't very good
when it comes to dates and prices.

> As you've already commented adversely on the amount of research I've
> done and (more importantly) as this is your assertion and not mine,
> perhaps you could dig out the brochures for us?


I have a TASCAM Model 15 brochure at home, and maybe some A&H stuff
too. Remind me after Jan 23.

> The Mackie 8-buss sold in volume in its home market. Mackie didn't have
> any appreciable export representation until fairly recently so you can't
> make claims on relative sales figures.


OK, them maybe we shouldn't compare Mackie and A&H at all. A&H didn't
sell worth diddly in the US in those days either.

> I suspect Mackie is still making its 8-buss because it has had nothing
> better to do. If the new products are as good as they seem from your
> last post, maybe they'll stop making them soon.


I was just talking about the 8-bus today with the project manager. He
would love to do an update to it, but the cold hard truth is that
there's so little market for an 8-bus analog recording board that
unless there's a big resurgence in analog multitrack recording, they
couldn't sell enough of them to make back the R&D effort. The existing
8-bus is long amortized so it doesn't cost them a lot to keep it in
production. If you want to see a new analog 8-bus console (from
anybody) tell all your friends to pick u one or two Ampex 2" recorders
for $2500. Then there will be a need to buy a console.



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Mike Rivers
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      01-17-2004, 05:06 PM

In article <(E-Mail Removed)> (E-Mail Removed) writes:

> Mackie was not trying to protect a
> circuit or anything it owned or had any proprietary rights in at all (as
> shown by the details of the claim and the finding above). It tried to
> manipulate the legal system - in an underhand, devious and rotten way -
> to gain competitive advantage.


The part about "underhanded, devious, and rotten" is your opinion, to
which you are certainly entitled - until you repeat it so often that
in the minds of some people, it becomes a statement of fact.

What a reasonable legal advisor would say is that Mackie was trying to
protect itself from erosion in the marketplace. If the documentation
which you quoted is accurate (and it's certainly more reasonable than
stealing a design), the potential eroder was not a fair competitor
since a major portion of the work (the source for a net list for
circuit board manufacturer) was already done by someone else who HAD
invested the time necessary to bring THEIR product to market) cost
them essentially nothing.

I'm not saying that any boob could scan a schematic into a computer
and come up with a cirucit board for a mixer. There is much
manufacturing engineering and ergonomics that go into the final
product. The simple fact that Mackie had a contol in one position on
the channel strip and Behringer had the same functional control in a
different position meant that the initial layout generated from the
net list had to be modified. I'm not suggesting (as some have) that
Behringer did no engineering on the alleged "copied" mixer. But
rather, that they had taken unfair marketplace advantage of Mackie's
work, saving much time and money in bringing their competing product
into the market.

It's kind of like printing $20 bills if you happened to find a set of
plates in the dumpster of the Bureau of Engraving and Printing (or
whatever your equivlant over there is). Sure, you had to set up the
printing press, but you didn't have to generate the original artwork
and make the plates. You'd get a lot more money made a lot faster that
way.



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However, until the spam goes away or Hell freezes over,
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George Gleason
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      01-17-2004, 06:26 PM

"Mike Rivers" <(E-Mail Removed)> wrote in message
news:znr1074357882k@trad...
>

Mike in all fairness to both makers, a preamp design is not rocket science,
especially when one takes it from the chip makers"cookbook" application
guides to it products
seeing as both M&B used one of the most common decives avaiable(B using
the newer upgrade compared to M) it is hardly even note worthy that the
preamps has some similarities
aamof it would be amazing if they didn't
I seriously doubt anyone aspired to copy any mackie stuff, it just isn't
innovative enough or good enough to copy
you want to copy something do like Yamaha did to neve
George


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George
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      01-17-2004, 07:09 PM
In article <znr1074318078k@trad>, (E-Mail Removed) (Mike Rivers)
wrote:

> In article <zEUNb.48827$(E-Mail Removed)>
> (E-Mail Removed) writes:
>
> > I will be intrested in the # of preamps and the card slot config/outboard
> > support gear

>
> 24 mic/line inputs with 4-band parametric EQ, compressor, gate, and
> high pass filter. 8 line-only inputs without the dynamics. In addition
> there's an ADAT Lightpipe input and output, and a couple of AES/EBU
> inputs and outputs. No card slots that I can remeber, all the I/O is
> on board, hook up whatever outboard gear you got. It has four internal
> effect processors. One place where I think they missed out is that the
> Lightpipe output is assignable to the group or matrix outputs and
> can't be assigned to the auxiliary sends, so you can't use it to feed
> a multi-channel effect proscssor such as the Kurzweil KSP-8.
>

Ifound itn on the mackie site
it does appear to have card slots
but does not say if it is expandable to more than the 24 ch
also no suggested list price
also no photograph, just a artists rendering
I think I am sticking with the proven yamaha platform
George
 
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Laurence Payne
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      01-17-2004, 07:15 PM
On Sat, 17 Jan 2004 18:26:57 GMT, "George Gleason"
<(E-Mail Removed)> wrote:

>I seriously doubt anyone aspired to copy any mackie stuff, it just isn't
>innovative enough or good enough to copy


It found a market though, didn't it? SOMETHING was worth copying :-)

CubaseFAQ page www.laurencepayne.co.uk/CubaseFAQ.htm
"Still the world's least impressive web page" - George Perfect
 
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George
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      01-17-2004, 07:41 PM
In article <(E-Mail Removed)>,
Laurence Payne <(E-Mail Removed)> wrote:

> On Sat, 17 Jan 2004 18:26:57 GMT, "George Gleason"
> <(E-Mail Removed)> wrote:
>
> >I seriously doubt anyone aspired to copy any mackie stuff, it just isn't
> >innovative enough or good enough to copy

>
> It found a market though, didn't it? SOMETHING was worth copying :-)


I don't follow your post
it has been established behringer did not copy mackie, ever in anyway
so what was copied?
George
 
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