a real circuit split: sampling
Forget Grokster, which is the entertainment industry’s attempt to get Sony reviewed & overturned, by trying to generate a circuit split out of the dicta in Aimster.
An actual circuit split in the making is on sampling, with the Beastie Boys’ 9th circuit decision today declining to reconsider its Nov. 4, 2003, decision (Newton v. Diamond) permitting sampling. [The article was published tomorrow, 11/11, in Australia, relating to a decision from today, 11/10, in California.] [iptablog 11/4] This is in contrast with the beknighted* decision out of the 6th Circuit a few months ago which held that you have to get a license to sample, period. [Bridgeport Music v. Dimension Films, 6th Cir., Sept. 7, 2004] The recording industry has asked for that decision to be reheard en banc.
* Why do I do that? I know there’s not a “k” in benighted. What, like it has to do with being granted an honorary “title” … I really find myself making many more spelling and homonym spelling errors in my mid-30s than I did in my youth. What’s that all about?
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“I really find myself making many more spelling and homonym spelling errors in my mid-30s than I did in my youth. What’s that all about?”
More and richer neural interconnections, more concepts to associate, shallower grooves and wider thinking?
One would like to think so as one gets older!
On closer reading, this decision sadly says nothing to contradict the 6th circuit decision. This decision says that a license to use the original recording is always required, but an additional license to the performance of the original piece is unnecessary if the sample is small enough. The 6th circuit decision was only about the first type of license, and even points out that one may, without infringing on copyright, take a few notes from a composition.