So ordered the 6th Circuit Court of Appeals. Sampling, we’re told, is piracy. But be certain to see the 19 footnotes in this relatively brief opinion, or the 28 separate quotes the opinion includes from other peoples work. I assume the court got a license for those.
Now that’s not quite fair. The court’s decision turns upon its “literal” reading of the sound recording statute. The sound recording statute has no de minimis exceptions, the court held. So while you are free to copy three notes from a musical composition, you can’t copy the same three notes from a recording. So copying (so long as de minimis) is fine; cut & paste is not. It is a “bright-line” rule the Court has crafted: Ask permission first. (And don’t worry, they might have added. It’s simple.)
So once again: life in the analog world is freer than life in the digital world. You can do it, just don’t use technology to do it — unless, of course, your lawyer has spoken to their lawyer.
It really is time to begin staging “Fair Use it or Lose it” Rallies.
Decisions that have a “just say no to sampling” flavo(u)r will be as systematically ignored as are laws against masturbation.
As all 10^10 of us become empowered through connection these absurd attempts by legislators/attorneys/judges to own “the law” and its codification will be replaced by a giant wiki (somewhat like the wikipedia) and our observance/obeisance will be sort of voluntary.
Love.
de minimis is there for a reason!
I’m going to sue everyone who creates a digital recording: they are sampling my work, obviously, by including 0s and 1s (both of which appear in my work) in their digital recordings.
Note typo twice — for “minimus” read “minimis”
here:
“… recording statute has no de minimus exceptions …”
and here:
” … copying (so long as de minimus) is fine; cut & paste is not. …”
Curious – given that it is a ‘sound recording’, is there a de minimus exception implied by the physics of sound?
Sound is a cyclic waveform – maybe one cycle, but cyclic nonetheless. So, an individual number — a one point sample — is not a sound. If the sound in question is mid frequency (example: 1000 Hz), then a complete cycle from a CD would be about 45 individual points. However, if the sound is high frequency (19,000 Hz) a sample could be as little as 2 points. Low frequency sound (60 Hz) would require 750 points to make up a sample.
Bass drums will require more points that a flute.
For now, we will ignore certain types of sound processing that would render the sample completely unintelligible. Want examples? Go listen to Merzbow.
To me, this bright line test is nowhere near as bright as the authors seem to think.
oops! thanks
now that sound is outlawed, only outlaws will have sounds!
I Still Don’t Care
http://noneinc.com/sound/ReInterpretingthePlunderClassics/RItPC03-%2520&ECC-IStillDon'tCare.mp3
“life in the analog world is freer than life in the digital world. You can do it, just don’t use technology to do it?”
You’re confused. The decision makes no distinction between analog recording devices and digital recording devices.
If you’re using “analog world” as a metaphor for non-electronic methods that’s a very poor choice in this instance.
ever seen DJ Q-Bert or another top level scratch DJ perform? Try to tell them the samples they scratches on turntables aren’t being manipulated to the point where its pure artistic expression ….
what are your thoughts on this idea:
as we all know fourier analysis states that any complex sound wave can be broken down into a series of simple simple sine waves.
a corollary of this means that for any sound wave x there exists a wave y, which when combined with x will yield wave z.
so say i want to sample welcome back kotter but cannot due to law. what i do is play my acoustic guitar randomly for the length of the desired sample. then i analyze the difference between my wave x and the welcome back kotter wave z, yielding the difference wave y.
now here’s the important part. to avoid legal repercussions i need to synthesize (from scratch) wave y. luckily, given the mathematical formula (the fourier analysis) i should be able to program the wave in csound or some other synthesis language.
and voila.
now all that needs to be done is to implement the above in a “one click” program, which shouldn’t be too hard for a decent programmer. ie you feed it wave x and z and click a button, and it will analyze and generate desired wave y.
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While I don’t particularly like this decision, I can understand the reasoning behind it. The court did say that musicians are permitted to make their own recording of the soundbites, as an alternative to a license (since the copyright in question is the one covering the recording, and independant creation still applies). I’m curious what the likely implications are for fair use rights (such as the recent compilations of two notes from song A, one from song B, etc.). Since that is transformative (creates a different work), I would expect a court to consider it seperately. However, this decision seems to be written in a way that seems to prevent this.
Can someone please explain how this isn’t effectively a ban on hip-hop music which is by it’s very definition built on sampling existing music?
rupa — maybe that would be a derivative work?
you can XOR an mp3 file with “101010101….” and accomplish the same result. Not sure it would be any different than what you describe.
How the hell does anyone prove the sampling of three notes? I suppose weird steganography sort of signatures, maybe. Regardless, it seems that this decision is itself di minimis, to the extent that any yokel can simply learn the three notes in question from the recording in question (using a guitar tuner if they’re totally tone-deaf) and “sample” it by virtue of playing it on a keyboard, thus completely evading this pointless decision.
Well, I thought about my previous post, and (as a citizen in a democratic society who believes he has a fundamental right to discuss the laws he is supposed to be involved in creating, but not as a lawyer, as I don’t have the needed qualifications) I took down my law dictionary to find out de minimis isn’t restricted to copyright.
De minimis is a term used for any legal violation that the court thinks isn’t worth scheduling a court room, and paying a judge and court reporter (and possibly calling in a jury) to decide. For instance, if I ask for a Coke at the local restaruant, but I know I got a Pepsi instead, I might have an action for fraud, but the judge is going to look at the filing and say “Max, you asked for one $1 drink, and got a different $1 drink. If I find the restaurant guilty, what kind of damages can I award you?” That (in my non-legal opinion) would likely be thrown out as de minimis.
The ruling here seems to say that the case can’t be thrown out as de minimis even though only three notes were involved. The ruling spends some time talking about non-literal copying, but I now think that was because somebody creating a digital sample can filter out sounds, or use such crappy settings that the end result not match the original directly.
And while fair use considers the amount of material lifted, that amount does not have to be “de minimis” in order to qualify for fair use. So (as a lay-person who has taken a business law class, and who’s father is an attorney, but who hasn’t actually been in law school, and doesn’t want anybody taking this as legal advice), I believe this ruling has nothing to do with the copyright issues — like derivative works and fair use — that we are familiar with. So, I don’t think this ruling has any application to old school hip hop that involved playing records funny ways at dance halls, or the clever derivative works that transform the original so much that there is no similarity between the original and the derived work.
Any comments?
“The appeals court disagreed, saying a recording artist who acknowledges sampling may be liable, even when the source of a sample is unrecognizable. Noting that No Limit Films “had not disputed that it digitally sampled a copyrighted sound recording,” the appeals court sent the case back to the lower court.”
Well, it seems it was certainly recognisable to the artist. Repainting a stolen bicycle so it is not recognisable to the owner, doesn’t absolve the thief of the theft.
There is a difference between inspiration and imitation, the court simply helped to draw a brighter line between the two.
It is particularly ironic that hip-hop artists – many of whom complain that others are riding on their originality –
“You know some of those n-a’s is so deceptive, using my styles like a contraceptive.” – Snoop Dogg
can’t seem to do the math that they are doing the same thing to others.
hopefully, this ruling with spur artists to make an effort and think of something original – and end the dreadful cycle of hip-hop mediocrisy.
Does this also apply in the case of the visual arts? Would Picasso and Braque be prevented from making their collage pieces from today’s newspapers?
To three blind mice’s point, sampling isn’t the source of hip-hop mediocrisy, and the argument can well be made that we wouldn’t hip hop if not for sampling.
There is a difference between inspiration and imitation, the court simply helped to draw a brighter line between the two.
Rubbish.
For thousands of years, poets and other writers of literary works have “sampled” one another. It’s called allusion. Check out a really good, high-quality, well-footnoted and cross-referenced dictionary of quotations some day.
Unfortunately, Three Blind Mice’s closing sentence reflects a view held by many. The problem is that the very people who can afford to sample legally are the people responsible for hip-hop’s supposed mediocrity.
This ruling won’t keep P-Diddy from putting out records as his label can pay for what he uses.
If a label can’t afford to clear the samples on a record, and faces crippling legal repercussions if they release uncleared material, then they won’t put it out. The people affected by heavy enforcement of this ruling would be the independents; local and unsigned acts on smaller labels simply struggling to break even on their releases. Throw in untold thousands of dallars in clearing costs and their output ceases.
This would most definately have a stifling effect on creativity in music.
I can only agree with rod:
The first delasoul album got them some trouble due to unlicensed samples; the second one was all cleared and finicky documented – this ruling will not stop sampling (that was in the 80ies.)
In other news, I have also seen a dvd anthology of amateur video fail, because it was not possible to get at the reproduction rights of used musical tracks (some publishers did not care to answer requests then, some tracks rights holders could not be identified.)
Public performance of copyrighted music is actually made easier than mechanical reproduction: as the collecting societies operate in near monopoly and claim all the worlds repertoire – they gladly collect for performances of works, they dont manage – you are not pressed to ask any questions.
Over at AKMA’s place, a question came to me: What does de minimis say about otherwise harmless use of an accidentally unsecured access point?
What’s the damage? Let’s see–$50/month for DSL, double that for overhead. $100/month would make one cent of that cost prorated equal to 241 seconds. That’s six minutes. In the hypothetical above, involving a buck, you’d have to have a ten-hour session to cost that.
Now, the joker here is specifying otherwise harmless use, so I’m not taking into account whether the owner of the access point is being sufficiently slowed down by the free rider to be harmed (not a back-of-envelope [okay, I used bc] calculation).
That aside, though, am I out to lunch or making sense?
How frustrating. As somebody in the music business, it’s my opinion that we’re shooting ourselves in the foot. I’m all for people being able to make a living off intellectual property (and am an author and publisher myself), but if we keep living on what we’ve done in the past, we’ll lose out big time in the future. Copyright should be be for the good all society and not just authors.
One of the communities that this will effect is HydrogenAudio’s codec comparison tests. The codec comparison they do (is AAC better than MP3, etc) run about 10 samples by hundreds of people to make sure most music genres are tested. Now, of course, they could ask permission, but is the music industry or artist going to say, “okay, you and distribute hundreds and hundreds of copies of my 30 second clip to unknown people via bittorrent.”
It’s a ridiculous ruling. talk about transaction costs.. can artists afford to get clearance? De La Soul couldn’t have MADE the first album which gave them the wherewithal to get clearance for the second album, if this law had been in effect..
the only upside is it will further inspire artists who sample to look for recordings from countries not yet in the WTO or in our copyright treaties, or not paying attention to them (Bollywood, anyone?) which will make for more interesting samples..
And for those wanting to get involved in civil disobedience:
Downhill battle is teaming up with musician and artist Michael Bell-Smith to offer this response to last week’s ruling:
3 Notes and Runnin’ – http://www.downhillbattle.org/3notes/
The project is an open call for 30 second songs made entirely and exclusively (but not necessarily recognizably) out of the 1.5 second Funkadelic sample that was the focus of the court case.