So, What Is Infringement?

Techdirt cites a Billboard article, Court To Hip-Hop Nation: No Free Samples, discussing Bridgeport Music v. Dimension Films [pdf] that raises an existential question — if the sound is not recognizable, is it an infringement?

Let’s just say that there is some striking thinking expressed. For example, here’s an impressive assertion of market efficiency:

Section 114(b) provides that “[t]he exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.” In other words, a sound recording owner has the exclusive right to “sample” his own recording. We find much to recommend this interpretation.[8]

To begin with, there is ease of enforcement. Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a “riff” from another work in his or her recording, he is free to duplicate the sound of that “riff” in the studio. Second, the market will control the license price and keep it within bounds.[9] The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another’s work product.

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. Why is there no de minimis taking or why should substantial similarity not enter the equation.[10] 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.[11] 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, or (2) add something to the new recording, or (3) both. 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. [emphasis added — “physical?”]

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. 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 800 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. 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.

Getting back to our existential question, see footnote [8] from the first paragraph of the quote above:

8 First, by clarifying the rights of a sound recording copyright owner in regard to derivative works, Section 114(b) makes it clear that the digital sampling of a copyrighted sound recording must typically be licensed to avoid an infringement. Section 114(b) states that:

The exclusive right of the owner of copyright in a sound recording under [the section 106 right to prepare derivative works] is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.

The import of this language is that it does not matter how much a digital sampler alters the actual sounds or whether the ordinary lay observer can or cannot recognize the song or the artist’s performance of it. Since the exclusive right encompasses rearranging, remixing, or otherwise altering the actual sounds, the statute by its own terms precludes the use of a substantial similarity test. [emphasis added]

Susan J. Latham, Newton v. Diamond: Measuring the Legitimacy of Unauthorized Compositional Sampling–A Clue Illuminated and Obscured, 26 Hastings Comm. & Ent. L.J. 119, 125 (2003) (footnotes omitted).

It doesn’t have to be recognizably a sample to be an infringement — doesn’t this raise some rather ugly implementation issues?

Or is this an effort to push Congress back to the copyright drawing board?

See also Scrivener’s Error commentary: Just When You Thought It Was Safe to Go Back in the Blawgosphere…. Later, Derek’s Court Says Banning Sampling Poses No Threat to Creativity; AP Wire, Facing the Copyright Rap; and don’t miss the funky graphics in TGIF for Dr. Funkenstein!

OT: Hurrah for James Earl Carter

A very Southern letter by a past US President: LETTER TO ZELL MILLER: ‘You have betrayed our trust’ [pdf]

To Sen. Zell Miller:

You seem to have forgotten that loyal Democrats elected you as mayor [of Young Harris] and as state senator. Loyal Democrats, including members of my family and me, elected you as state senator, lieutenant governor and governor. It was a loyal Democrat, Lester Maddox, who assigned you to high positions in the state government when you were out of office. It was a loyal Democrat, Roy Barnes, who appointed you as U.S. senator when you were out of office. By your historically unprecedented disloyalty, you have betrayed our trust.

Great Georgia Democrats who served in the past, including Walter George, Richard Russell, Herman Talmadge and Sam Nunn, disagreed strongly with the policies of Franklin Roosevelt, Harry Truman, John Kennedy, Lyndon Johnson and me, but they remained loyal to the party in which they gained their public office. Other Democrats, because of philosophical differences or the race issue, like Bo Callaway and Strom Thurmond, at least had the decency to become Republicans.

Everyone knows that you were chosen to speak at the Republican National Convention because of your being a “Democrat,” and it’s quite possible that your rabid speech damaged our party and paid the GOP some transient dividends.

Perhaps more troublesome of all is seeing you adopt an established and very effective Republican campaign technique of destroying the character of opponents by wild and false allegations. […]

TechDirt on the Starbucks Music Distribution Rollout

Starbucks’ Music Plans Seem To Be Drinking Decaf

Now, Xueilonox writes in with a link to an MSNBC update saying that Starbucks keeps delaying the rollout [pdf], and more questions are being raised about whether or not it makes any sense (how many Starbucks’ employees do you think can fix a busted CD burner?). Meanwhile, Xueilonox also submits a first-hand account of the first HearNow music store testing this offering out, noting the big complaint everyone has pointed out from the very beginning of this concept: the prices suck. They’re more expensive than buying a typical CD or downloading and burning the music yourself at home using any one of the (way too) many digital download stores available. Obviously, Starbucks’ has done a fantastic job charging a lot more than others for many coffee drinkers’ daily caffeine fix, but does that mean they can do the same for music?

See earlier Starbucks Music Download Service and Update on the Starbucks Music Initiative

MyTunes Back, For The Moment

MyTunes returns for iTunes song sharing

The software takes advantage of iTunes’ ability to stream songs between computers. That feature is aimed at people who want to listen on one PC to songs stored on another computer inside a home network, among other uses, but Apple does not ordinarily allow the files to be downloaded permanently.

MyTunes developer Bill Zeller, like other independent programmers, has said he is simply interested in extending the way iTunes can be used. Zeller’s original software, which also enabled people to download songs from other computers, was disabled by Apple in April, and he said on Tuesday he had had trepidations about releasing the “Redux” version.

“I was worried that if Apple doesn’t like it, even though they haven’t said anything to me, they could turn off sharing completely–and that would be bad,” Zeller said. “But OurTunes was already out, and that has the same functionality.”

Speaking of Tinfoil…Maybe I Need Some

Flight ID Rules Fuel Fresh Furor

Gilmore first challenged the constitutionality of requiring airlines to ask passengers to show identification in U.S. District Court in San Francisco in July 2002, but the government refused to tell that court whether the rule existed.

However, the government acknowledged that if the requirement did exist, it would be in a secret security directive that would have to be challenged in an appeals court.

[…] Jim Harrison, one of Gilmore’s attorneys, lambasted the government’s latest request and called it “radical” in Tuesday’s filing.

“Secret court proceedings about secret laws make for a dangerous environment,” Harrison said in a phone interview. “Just take a look at history.”

Lucy Dalgish, executive director of The Reporters Committee for Freedom of the Press, described the government’s request for a secret hearing, in which Gilmore’s attorneys would not be present, as “absolutely ridiculous.” But she said she was not surprised, given the growing number of secret hearings post-9/11.

See also BoingBoing’s Gilmore v. Ashcroft “Papers Please” case update

Looking for non-RIAA Music?

This kuro5hin series might be of interest: Snubbing the RIAA, Part II.. The article cites online radio stations as a key source, and so Benny Evangelista’s article, Microsoft creates static over new radio feature, raises some interesting issues. What is MSN up to?

Software giant Microsoft took center stage last week when it began selling songs online, but another feature of its new MSN Music service is quietly raising eyebrows in the radio industry.

Microsoft is using playlists from more than 900 local radio stations around the country to create its own soundalike Internet stations — stripped of local DJ chatter, traffic, weather and commercials.

The new MSN Radio offers Internet stations playing most of the same songs heard on over-the-air outlets like Berkeley’s KBLX, “The Quiet Storm”; New York’s WNEW, “The Mix 102.9”; or Chicago’s WLUP, “The Loop.”

“It results in a more pleasant experience because you don’t have the ads or the DJs,” Rob Bennett, senior director for MSN Entertainment, said during a press briefing last week.

[…] “I’m surprised they would co-opt the brand names of every radio station in America without permission,” said Bill Conway, program director and station manager for San Francisco’s KOIT-FM. Conway was surprised when he learned from a reporter that Microsoft was using his station’s call letters and well-known slogan, “Lite Rock, Less Talk,” to promote a mimicked version of KOIT.

OT: Tinfoil Hat Time?

Or something else: The Cellphone That Doesn’t Work at the Hotel

Cellphones have taken a huge bite out of their earnings. Thanks largely to the preponderance of portables, the profits from in-room phones dropped 76 percent in four years, sliding from $644 an available room in 2000 to $152 last year, according to the hotel consulting firm PKF in San Francisco.

[…] But are they so unhappy that they are biting back? No way, say hotel representatives. For starters, they point out, cellphone-blocking devices are illegal in the United States.

[…] Loreen Haim-Cayzer, the director of marketing and sales for Netline Communications Technologies in Tel Aviv, acknowledged that her company had sold hundreds of cellphone jammers to hotels around the world. But asked if any of them were in the United States, Ms. Haim-Cayzer said she could not disclose the identity of clients.

[…] The doubts are not limited to guests. When a recent PricewaterhouseCoopers survey showed the number of calls made from hotel room phones had fallen by 40 percent in the last four years, the firm’s lodging consultants wondered whether hotels were fighting back by investing in wireless jamming technology.

An investigation, however, turned up nothing. “It’s possible that there are hotels using cellphone jammers,” said Bjorn Hanson, a PricewaterhouseCoopers hotel analyst. “But we couldn’t find them.”

[…] Not everyone sees that as proof that the devices are not in use. “The F.C.C. rule prohibiting cellphone jammers is unenforced,” said Howard Melamed, the chief executive of the CellAntenna Corporation, a cellular-communications technology company in Coral Springs, Fla.

At the same time, consumer complaints to the F.C.C. about telecommunications service quality, a catch-all category that includes possible cellular-blocking devices, busy signals and roaming service, surged to 704 in the fourth quarter of last year, the latest period for which numbers were available, from 450 in the first quarter.