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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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June 03, 2005

6th Cir. Reaffirms - No De Minimis Defense in Copying Sound Recordings

Posted by Ernest Miller

The Free Expression Policy Project reports that a Sixth Circuit Court of Appeals panel has reaffirmed their decision in Bridgeport Music v. Dimension Films that there is essentially no de minimus exception to copyright infringement for sound recordings; even copying of two notes from a sound recording is infringement (Appeals Court Reaffirms Its Tone-Deaf Approach to Music Sampling). Read the whole thing, but here is the summary:

Under the court's latest ruling in Bridgeport Music v. Dimension Films, even two notes sampled from a sound recording is automatically copyright infringement. (The court acknowledged that taking one note probably would not amount to infringement, since copyright law defines a sound recording as "the fixation of a series of musical, spoken, or other sounds.")

The case involves a two-second, three-note guitar riff sampled from the song "Get Off Your Ass and Jam," which was changed in pitch and "looped" into another song, "100 Miles." "100 Miles" was used in the soundtrack of a movie, I Got the Hook Up. The moviemakers were the defendants in the case. A federal trial court ruled that the copying was de minimis and therefore not actionable under copyright law. The Sixth Circuit reversed last year, but then agreed to grant "rehearing." [italics in original]

Read the 16-page decision here: Bridgeport Music v. Dimension Films [PDF].

Part of the problem seems to be the funky way Congress has dealt with sound recordings as opposed to musical works.

The copyright laws attempt to strike a balance between protecting original works and stifling further creativity. The provisions, for example, for compulsory licensing make it possible for “creators” to enjoy the fruits of their creations, but not to fence them off from the world at large. 17 U.S.C. § 115. Although musical compositions have always enjoyed copyright protection, it was not until 1971 that sound recordings were subject to a separate copyright. If one were to analogize to a book, it is not the book, i.e., the paper and binding, that is copyrightable, but its contents. There are probably any number of reasons why the decision was made by Congress to treat a sound recording differently from a book even though both are the medium in which an original work is fixed rather than the creation itself. None the least of them certainly were advances in technology which made the “pirating” of sound recordings an easy task. The balance that was struck was to give sound recording copyright holders the exclusive right “to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.” 17 U.S.C. § 114(b). This means that the world at large is free to imitate or simulate the creative work fixed in the recording so long as an actual copy of the sound recording itself is not made. That leads us directly to the issue in this case. If you cannot pirate the whole sound recording, can you “lift” or “sample” something less than the whole. Our answer to that question is in the negative. [footnotes omitted]
Congress thought it was being clever when it created a mechanical compulsory license for the creation of phonorecords in order to solve the potential monopoly problem in player piano rolls. But then technology changed, and one could record sound recordings and not simply holes in a roll of paper. This changed the industry even more dramatically (not to mention the advent of broadcast radio), and things got messy. States rushed in with common law copyrights for sound recordings, which Congress had to later straighten out without upsetting existing industrial interests. Consequently, any new music distribution technologies/business models have a heck of a time struggling to deal with licensing distinctions based upon technology and business models prevalent at the turn of the 20th century.

In other words, we wouldn't have this problem if Congress hadn't screwed up copyright law in the first place.

And now for some annotation:

This analysis admittedly raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three notes by way of sampling from a sound recording. [Indeed it does.] Why is there no de minimis taking or why should substantial similarity not enter the equation. Our first answer to this question is what we have earlier indicated. We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording is sampled, the part taken is something of value. [Here comes the circular reasoning - it's valuable because we're going to give people the right to sue.] No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, [This is a variation of the "sweat of the brow" theory. It would save me money to make a copy of an existing phonebook rather than collect all the names and numbers myself, but so what? That doesn't make the phone book copyrightable.] or (2) add something to the new recording, [That addition may simply be the pleasure of knowing the origin of the original, a call out if you will. Therefore, I'm not sure what this has to do with whether something is de minimis or not.] or (3) both. [This is merely redundant.] For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one. [It's a physical taking? Huh? Someone broke in and physically took something? I must have missed that part of the case.] This case also illustrates the kind of mental, musicological, and technological gymnastics that would have to be employed if one were to adopt a de minimis or substantial similarity analysis. [Yeah, that whole "de minimus" doctrine has got to go, since "de minimus" is always a difficult one to analyze, there is no reason to think it is particularly more difficult in the context of sound recordings. After all, "de minimis" rulings in video cases have to take into account length, focus, whether it was emphasized, etc.] The district judge did an excellent job of navigating these troubled waters, but not without dint of great effort. When one considers that he has hundreds of other cases all involving different samples from different songs, the value of a principled bright-line rule becomes apparent. We would want to emphasize, however, that considerations of judicial economy are not what drives this opinion. [Could have fooled me.] If any consideration of economy is involved it is that of the music industry. As this case and other companion cases make clear, it would appear to be cheaper to license than to litigate. [We're doing this for you're own good.] [footnotes omitted]
A number of policy considerations were also part of the decision. For example,
Finally, and unfortunately, there is no Rosetta stone for the interpretation of the copyright statute. We have taken a “literal reading” approach. The legislative history is of little help because digital sampling wasn’t being done in 1971. If this is not what Congress intended or is not what they would intend now, it is easy enough for the record industry, as they have done in the past, to go back to Congress for a clarification or change in the law. This is the best place for the change to be made, rather than in the courts, because as this case demonstrates, the court is never aware of much more than the tip of the iceberg. To properly sort out this type of problem with its complex technical and business overtones, one needs the type of investigative resources as well as the ability to hold hearings that is possessed by Congress.
Hello? Public choice theory? Sure, if it is unclear, kick it back to Congress. But who should you give the precedent to? Those with a concentrated interest in extending copyright, or those with a diffuse interest in sampling? Public choice theory would recommend reversing this decision, because if it was that big a deal those with a concentrated interest should have no problem getting Congress to do something that is opposed simply by a diffuse interest.

That's all for now. Read more about the original decision from Joe Gratz (6th Cir.: There’s No Such Thing As De Minimis Sampling).

Comments (3) + TrackBacks (0) | Category: Copyright


COMMENTS

1. Timothy Phillips on June 3, 2005 03:32 PM writes...

We've come a long way since the day of Mattheson's Volkommene Kapellmeister (1739). Then we could take distinctive motives "without ... thinking on the first author, or knowing who it is"; now we have a doctrine of "unconscious infringement". Then a composer "through much study and attentive listening to good works...gatherered a kit of progressions, little turns of musical phrase, clever motives, and pleasant passages and leaps" to use in new works. Now we risk incurring liability for infringement if we take more than three notes from printed music, and more than one from a sound recording.

Permalink to Comment

2. This decision really pisses... on June 6, 2005 11:11 AM writes...

This decision really pisses me up.

Incredible! Here someone copied two sound notes infringement was found.

As a contrast, in my case, hundreds of songs were stolen (not a few notes, but the entire song) by a music publisher, who even registered 80 of the songs at the Copyright Office. Infringement was found only for one song. For the rest of the stolen songs, hundreds, no infringement was found. The Judge said that we did not prove that actual performance of the stolen songs were actually performed on radio, ignoring that for many of the songs it was proved that many records were licened fraudulently by the defendant publisher and that the records were were actually made and that subsequent royalties (over $100,000 proven in court but I estimate that, based on actual sales o CDs, over $400,000 were actually paid to the fraudulent publisher. Al the Judge said is the we owned the stolen songs (we already knew that!).

One must think we are talking of court decisions in different countries, No, our case was seen in an American Federal Court, in San Juan Puerto Rico. The Judge is the president of the court!

Rafael Venegas
http://www.gvenegas.com

Permalink to Comment

3. Marc Freedman, RazorPop on June 10, 2005 05:39 PM writes...

Ernest,

Well done. That is truly a bad precedent.

On the other hand I now own C-E-F©. So I'm not complaining ...

At "I Can Own That Song in Three Notes" - http://www.p2p-weblog.com/archives/i_can_own_that_song_in_three_notes.html

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