Copyright. Music. Like many others who worry about achieving the proper balance between public and private interests in copyright law, I was very disturbed when the Sixth Circuit announced its novel interpretation of the Copyright Act in Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 398 (6th Cir. 2004), aff'd on reh’g, 410 F.3d 792 (6th Cir. 2005). The court concluded that hip hop artists and others who create digital samples must live by a simple rule: "Get a license or do not sample."
The court justified its holding on a number of policy grounds, the most important being that it would reduce transaction costs. (It was hard not to notice that some of those transaction costs would be the court's own in handling the hundreds of similar cases pending below.) Not surprisingly, most of the blog/mainstream press commentary that I read focused energy and criticism on the court's policy rationale.
My reaction was a little different, and I have been holding it in for too long. While I also am wholly unpersuaded by the court's rationale, I found more disturbing the court's method of interpreting the Copyright Act. With all due respect, even if you think the court's rule is a good one, if you value consistency in statutory interpretation, you will have to admit that the case was wrongly decided. Here's why:
First, a little backgound. Copyright law distinguishes between a "musical work"- the music and lyrics - and a "sound recording" - the recorded rendition of the musical work. There is a separate copyright in the sound recording based on the creative decisions that went into how the musical work should sound when recorded. (The authors of the sound recording may be performer(s), the record producer(s), the sound engineer(s), and/or others involved in the recording session or post-production process.).
Analysis of the Copyright Act in an infringement action takes two steps. First, the court asks whether one of the exclusive rights granted to the copyright owner in Section 106 has been exercised without authorization. If the answer is yes, the court then asks whether one of the limitations on those rights in Sections 107-122 renders the use non-infringing.
Section 114 is one such limitation. In Section 114, Congress limited the scope of sound recording copyrights to make them narrower than copyright in most other forms of expression, including musical works. Contrary to the text and legislative history of the Act, the Sixth Circuit decision broadens the scope of sound recording copyrights beyond that for any other kind of creative work.
In Bridgeport, the question presented was whether the de minimis use limitation applies to digital sampling of a sound recording. The de minimis doctrine is a general limitation of law that applies to all of the Section 106 rights regardless of the type of copyright involved. The district court properly understood this and started and ended its analysis with Section 106, finding that a small snippet of a guitar lick that had been transformed and looped was a de minimis use.
The court of appeals, by contrast, started with Section 114 - the special limitation on the Section 106 rights that applies only to sound recording copyrights. The court then read a portion of Section 114 designed to limit the reproduction right to only exact duplication (instead of the normal rule, which encompasses substantially similar duplication) to eliminate the de minimis doctrine only for sound recordings.
In my view, neither the text of the Copyright Act nor its legislative history supports this unique departure from standard copyright infringement analysis. Therefore, as interesting as the policy analysis is concerning the value of certainty in copyright law, I do not think there is a statutory basis for the rule announced by the court in this case.