Friday, November 17, 2006

"Patent Troll, Meet Sample Troll"

Last week, the copyright and music world was abuzz when Shawn "Jay-Z" Carter was served with a complaint alleging that samples contained in his 2003 single "Justify My Thug" infringed on Madonna's "Justify My Love." Interestingly, Madonna was not the plaintiff. Instead, a company called Bridgeport Music Inc. alleged to own the rights to the Madonna song and was suing on its own behalf.

Bridgeport is a one-man corporation (termed a "catalog company") owned by a former music producer named Armen Boladian. Just like certain patent "trolls," it has no employees and no reported assets other than copyrights. While most catalog companies quietly license rights for television commercials, cover songs, and selling sheet music to interested fans, Bridgeport has found that trolling for sampling cash can result in some big paydays.

Since 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. In 2005, in the case of Bridgeport Music v. Dimension Films, the Sixth Circuit created a jaw-dropping rule in faor of Bridgeport, stating that any sampling, no matter how minimal or undetectable, is a copyright infringement (quoting the court: "get a license or do not sample. We do not see this as stifling creativity in any significant way" - view the decision here). In March of this year, Bridgeport convinced a court to enjoin the sales of the best-selling Notorious B.I.G. album "Ready to Die" for illegal sampling. A jury awarded Bridgeport $4.2 million in damages.

Professor Tim Wu from Columbia Law School details the actions of Bridgeport, and discusses the impact this behavior is having on the music industry. He also proposes some solutions to the "sample troll" problem:

Legal solutions to the sample-troll problem are relatively easy—much easier than fixing the patent-troll problem. First, there's only one appellate court, the 6th Circuit, that takes the ridiculous position that any sample, no matter how minimal, needs a license. Most copyright scholars think the decision is both activist and bogus—in the words of leading commentator William Patry, "Bridgeport is policy making wrapped up in a truncated view of law and economics." Other courts can easily counter Bridgeport. They just need to say that the infringement rules for sampling are the same rules that apply for the rest of copyright. Dumbledore may resemble Gandalf, but he's no infringement. Similarly, if you can't even recognize the original in a sample, it shouldn't violate federal law to use it.

Congress could also easily act against the sample trolls. All that is needed is a "sampling code": a single section of the law that declares the usage of some fixed amount of a sound recording, say, seven notes or less, to be no infringement of the copyright law. That would give artists a simple rule to live by, while still requiring licenses for big samples that would compete with the original. It's a win-win scenario. With a single line of code, Congress can make this problem go away.

See more details on Tim Wu's webpage here.

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