A question on legality of replacement parts for pedals or guitars?

[Djentronio]

I know that you can't give qualified lawyer advice. I also know and have seen direct replications or clones of pedals selling from people from ebay and labeling it as such. I've also seen places on the internet sell full 'clone kits' of amplifiers, such as tweed deluxe or whatever, or clones of pedals such as a certain website that pretty much copies near-name sounding guitar pedals from the original commercially available product (blue overdrive and not 'blues driver BD-2'), directly references it, then sells it in parts for you to complete. I assume the pieces of this 'blue overdrive' are similarly designed; same resistors and caps or in the general pocket, same ICs, etc.


It seems as though all this is legal, or it'd be shut down by now.

My question has to do with building replacement guitar preamps for those which go bad. Preamps often cost an arm and a leg from the official source. Imagine paying $100 or more for a 20 component and 1 IC on-board..

If people could pay 20 or 30 instead, they might not throw their old guitars in the trash so easily or mod them into a passive design that doesn't work with the coils that were chosen intentionally to mate with the type of preamp they put in there (or is it the other way around?).

Would this be as apparently legal as selling BYOC amps or pedal stuff? Is it 'more legal' if you just hand them all the separate pieces to put together by soldering their own together?

I understand that you can't give lawyer advice per say. I'm just asking anyone's legal guidance if they have off hand and well informed experience and somewhere I can look into it, patent laws regarding copying circuits for profit, whether or not its changed if you market the thing on ebay or anywhere else as a 'replacement part' rather than an original part, whether choosing the identical layout would make it illegal or would be acceptable as a non-brand named replacement part rather than claiming it as your own work, etc.

[Rob Strand]

Yes, there's all sorts of products out there.  Even "fake" Fluke multimeter leads, fake Sennheiser headphones.
I don't know the answer but I can give some food for thought.

If by making a product you breach any patents then I'm pretty sure this would be illegal.  Patents are by far the biggest stick for protection.  I should point out that some circuits have patented aspects.   Companies that make connectors often have patents and this prevents people making rip-offs however it doesn't seem to stop companies making something close.   That may come down to what specifically has been patented, eg the locking mechanism or the pin design.

I also believe if you make "fakes" it is illegal.   What aspect makes is illegal I don't know.   Is it the intent to deceive, or the the fact you are using a companies logo, or both.  Reading this there is definitely an issue using companies Trademarks and logos,

https://en.wikipedia.org/wiki/Counterfeit_consumer_goods

Beyond that it gets fuzzier ...

For preamps I've been thinking the very same thing after I saw someone selling replacement preamps recently.  These were for basses where the manufacturer no longer offers a replacement.  In other industries people make identical boards but I don't know if it is done legally.

If you recall a few years ago Roland took Behringer to court when they tried to produce clones.  After the legal battle Behringer only had to change to look of the units.  I remember there was a phrase they used like Behringer was copying Roland's market image.  This case indicates there is more to it than patents and trademarks.  As most people know the circuits are pretty much direct rip-offs.

I've you have looked at enough preamps you will see there are some designs that keep getting reused ... and by many companies.  Just like the same old pedal designs get re-used.  One thing I do see is the PCB is changed.  Whether that helps I don't know.

Interesting problem!

I suppose the thing to do is to look at the legal aspects of replacements in other industries.

[reddesert]

A feature of a circuit can be patented. However, there is a lot of prior art out there, so I would guess that the average simple analog preamp has no circuitry covered under current patents.

A circuit design can't be copyrighted - a drawing of a circuit schematic is copyrighted, but if you make your own drawing, that's legal. The drawing is a tangible expression, but the design itself is not.

Copying the name of a manufacturer, trademarks, or artwork is both illegal and unethical.  OTOH, using a name for informational purposes is not. Hipshot tuners will sell you a tuner as a drop in "retrofit for a Fender bass" and it's not deceptive.  OTOH, Allparts necks must be "licensed by Fender" because they use the trademark Fender headstock shape.

If you make a replacement preamp and are careful to word your description truthfully, it's unlikely that you would get in trouble. But it's also likely that once you count labor and tech support for your customers doing the installation, that you'll lose money and time selling $30 preamps. Cost of components is rarely the prime cost.

[StephenGiles]

Aha - think Sony D7 DAT digital connector! The UK cost of this cable with special Sony 7 pin plug was £100+ in the UK back in the 1990s - if you could get it!! Last year I came accross a thread in a DAT forum which discussed building this connector - so I made a very crude workaround -
https://www.dropbox.com/s/iyn1fw91yjsdx79/DAT.JPG?dl=0

I used bog standard mono audio cable with a phono (RCA) plug on one end, a tiny piece of veroboard and 2 .01uf capacitors which successfully extracted the S/PDIF signal - total cost was at most £0.50p!!!

[Rob Strand]

Last year I came accross a thread in a DAT forum which discussed building this connector - so I made a very crude workaround -

So you got around the patent by not trimming the PCB.

[EBK]

Is it 'more legal' if you just hand them all the separate pieces to put together by soldering their own together?

If it were protected by a patent, those actions could be considered "induced infringement," so, no.

[StephenGiles]

Last year I came accross a thread in a DAT forum which discussed building this connector - so I made a very crude workaround -

So you got around the patent by not trimming the PCB.

ha ha!!! Of course although DAT technology produces superb quality recordings, they have to be copied to PC in real time!

[ElectricDruid]

I second what reddeserrt said.

Circuits can be protected by patents, although most aren't, and PCB designs can be protected by copyright.

If you redraw the schematic and lay out your own board it's legal to clone anything that isn't patented. That's why there so much of it about.

So long as you don't try and pass it off as something that it isn't and don't infringe anyone's trademark protection of their name, logos, or design, then it's fine. For a PCB which no-one sees, most of those last things won't apply.

Tom

[PRR]

> replacement guitar preamps for those which go bad

Don't look at it that way.

Sell an "improved!" preamp at a fair price. The "improvement" may be only hand-soldering or blue PCB stuff or some small obvious detail.

My truck wants a new engine. GM will sell me one, but all-included not cheap. Jasper or Speedway will sell me an engine with seasoned castings, shaved ports, fat manifold+carb, 100 more horsepower, for the same or less.

[R.G.]

There are four major aspects of IP (Intellectual Property) in the USA. These are patents, trademarks and trade dress, copyright, and trade secrets.

Patents are essentially worthless as a money maker. If you as an individual hold a patent, you have simply done some free work for any company with a staff of lawyers and the will to pursue it. You cannot practically defend a patent as an individual against such a case. Companies tend to never sue one another, but instead use the portfolio of patents and the thr

eats of suits as trading cards for cross licensing. There are not-infrequent exceptions, but trading licenses is more common. An individual violating a company's patent rights is ignored until they start making some significant money and get noticed by the holder or the holder's friends. Being unnoticed by being too small to see or having too little money to be worth taking even all of is usually referred to as "flying under the radar"

If you get noticed, you will probably first get a cease-and-desist letter, which if ignored, gets you sued by the company's junior-est lawyers for practice, and you get to decide whether to cease and desist or pony up upwards of $100K - or more! - to your lawyers to get the case either settled (meaning, you give up and may have to pay some more dollars  to the company as contrition) or pay another $100K and up to go to trial. In my opinion, it is far more expedient to do your own design work, and if sent a C-A-D letter, desist. At least in that case, you're absent malice and it will be far cheaper.

Better yet, know what you're doing. If what you're thinking about making a competitor for has a patent notice on it, and it should if patents were involved, go look up the patent. The internet gives you  better access to patent searches and results than I had with full support by intellectual property lawyers back at Three Initial Corporation. Find the patent by number, read it and see if what is patented is the whole concept of - what, an onboard preamp? - or the shape and mounting technique of the knobs. Companies have been known to patent silly stuff to get a patent number to put on a product to discourage simple cloners. 

Trademarks and trade dress items include the registered mark(s) of the company and in some cases the look and feel of the product. This last overlaps with patents a bit as there are ways to "patent" the shape, function, etc. of a product as an integrated whole. The real killer here is registered trademarks. If you infringe a trademark, there can be large damages to pay after the court case. The owner of the trademark may use a CAD leter, maybe not.

Then there is copyright, which is a whole other can of worms, including mandatory statutory damages of up to $100K and you still get to pay for your lawyers. The almost-absolute defense against copyright offenses is to do your own artwork and write your own copy.

And the advice still remains the same. (1) Patents are essentially useless unless you have the money or lawyers to defend them. This makes a patent useless to individuals, as they pretty much can't defend them. (2) Sticking it to [insert evilbad company here] by making a cheaper underground product isn't as satisfying as you might think, in the few examples I've seen. The company probably won't know you're there any more than rhinos notice mosquitos. Correspondingly, the company can hurt you bad. (3) Don't mess with trademarks, trade dress, or copyright issues. (4) It's much more fun to do your own design work than to copy someone else's. And (5) if you have a question about what's legal, don't depend on the opinions on an internet forum to keep you out of jail or keep you from owing more money than you have. Internet legal advice is the cheapest form of legal advice,  but it's worth what you pay for it.

[DavidRavenMoon]

You aren't paying for the cost of parts when you buy something.

I spent $24 on parts for a bass preamp I sell for $120. The rest is labor, etc., and what the perceived price things sell for.

If you want to build your own, go ahead.


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[Djentronio]

> replacement guitar preamps for those which go bad

Don't look at it that way.

Sell an "improved!" preamp at a fair price. The "improvement" may be only hand-soldering or blue PCB stuff or some small obvious detail.

My truck wants a new engine. GM will sell me one, but all-included not cheap. Jasper or Speedway will sell me an engine with seasoned castings, shaved ports, fat manifold+carb, 100 more horsepower, for the same or less.

Do you mean it is possible that internal preamps may not be 'optimized', but are 'good enough', and making some small changes could make it both viable to sell and more legally in the clear?

[Rob Strand]

As far as I know the reason Gibson was able stop Ibanez (and other manufacturers) making copies in the 70's was because of patent infringements.

Do you mean it is possible that internal preamps may not be 'optimized', but are 'good enough', and making some small changes could make it both viable to sell and more legally in the clear?

I think PRR was giving a marketing angle.  There's not much between difference between many of those preamps, often one can mimic another by changing a few caps.

[FiveseveN]

There are some parameters which one could "optimize" (noise, EMI susceptibility, headroom, input & output protection etc.), but this is trivial for anyone with reasonable circuit design experience.
The important part is how they sound, and whether or not people will appreciate that sound is entirely subjective; you can't optimize taste.
But you don't need to use one specific circuit or PCB layout or component choice to produce a particular sound. So depending on what aspects may be patented or under copyright, there are almost always ways to get around it and achieve the same functionality.
Talk to an electrical/audio engineer, not a lawyer.

[EBK]

Once you've reached the point where you find it necessary to ask if someone is super duper sure something is legal (or if it absolutely positively meets your gray area criteria of "more legal"), you might feel better hiring a lawyer to get a formal opinion. 

[reddesert]

As far as I know the reason Gibson was able stop Ibanez (and other manufacturers) making copies in the 70's was because of patent infringements.

Do you mean it is possible that internal preamps may not be 'optimized', but are 'good enough', and making some small changes could make it both viable to sell and more legally in the clear?

I think PRR was giving a marketing angle.  There's not much between difference between many of those preamps, often one can mimic another by changing a few caps.

No, it was because of trademark infringements, not patents. The specific Gibson-Ibanez issue was a headstock shape. For example http://flypaper.soundfly.com/discover/truth-lawsuit-era-guitars/. Similarly, today there are guitars that look like Les Pauls or Stratocasters, but have different headstocks etc. Any patents on the Stratocaster would have expired long ago, but the Fender headstock shape is still a trademark.

To the OP, if you feel there's a demand for aftermarket preamps, go ahead and try selling them, of course being careful to label your preamps as 3rd party, not original. The worst that will happen is that you'll get a cease and desist letter. The most likely thing is that you'll find it takes a lot of your time to keep the business going.

[Rob Strand]

No, it was because of trademark infringements, not patents.

Ah, thanks.  So it's basically same thing as the Roland vs Behringer case.
The term I couldn't remember before was "trade dress", which comes under trademarks.

[Djentronio]

Okay. Thanks for the many advices. I've seen repeated claims that the pickups for this guitar are weak and people want to replace them, and I've also seen people looking for the preamp.