Comments on: Sample Trolls, Serendipity, and Citation-itis http://www.concurringopinions.com/archives/2006/11/sample_trolls_a.html The Law, the Universe, and Everything Sat, 21 Nov 2009 21:19:19 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: Craig R. Harmon http://www.concurringopinions.com/archives/2006/11/sample_trolls_a.html/comment-page-1#comment-56265 Craig R. Harmon Sat, 25 Nov 2006 21:13:13 +0000 http://www.solove.org/archives/2006/11/sample-trolls-serendipity-and-citation-itis.html#comment-56265 The idea seems to be simple: sampling bad. Print media has fair use for things like book reviews, scholarly research etc., but in such cases the use of copyright protected material is acknowledged, it's author named and the use is restricted by law. I would distinguish needing a license to use the word "elf", for example, from copying someone else's music recording in one's own in the following manner. The word "elf" wasn't created by J. R. R. Tolkien. It was in the culture long before he wrote his fantasy works. Using a character named John Smith wouldn't require a license to other authors using the name since it is a common name. On the other hand, if I used not only the name but the actual character "Bilbo Baggins" in one of my own works, using actual dialogue from Tolkien's work, I would expect to have to have formal permission to do so and to probably have to pay someone for that privilege or be taken to court and pay there. I don't see the difference in the music world. Radio stations used to run "guess the song" contests where they would play very short snippets of songs and people would guess for money. The courts or somebody said that even a needle drop on a record for broadcast constituted a use that required payment of royalties. I don't see this practice of sampling to be any different. Okay, I'm not a lawyer so I could be way off here but that's the way I see the issue. The idea seems to be simple: sampling bad. Print media has fair use for things like book reviews, scholarly research etc., but in such cases the use of copyright protected material is acknowledged, it’s author named and the use is restricted by law. I would distinguish needing a license to use the word “elf”, for example, from copying someone else’s music recording in one’s own in the following manner. The word “elf” wasn’t created by J. R. R. Tolkien. It was in the culture long before he wrote his fantasy works. Using a character named John Smith wouldn’t require a license to other authors using the name since it is a common name. On the other hand, if I used not only the name but the actual character “Bilbo Baggins” in one of my own works, using actual dialogue from Tolkien’s work, I would expect to have to have formal permission to do so and to probably have to pay someone for that privilege or be taken to court and pay there. I don’t see the difference in the music world. Radio stations used to run “guess the song” contests where they would play very short snippets of songs and people would guess for money. The courts or somebody said that even a needle drop on a record for broadcast constituted a use that required payment of royalties. I don’t see this practice of sampling to be any different.

Okay, I’m not a lawyer so I could be way off here but that’s the way I see the issue.

]]> By: Bruce Boyden http://www.concurringopinions.com/archives/2006/11/sample_trolls_a.html/comment-page-1#comment-56264 Bruce Boyden Wed, 22 Nov 2006 07:30:50 +0000 http://www.solove.org/archives/2006/11/sample-trolls-serendipity-and-citation-itis.html#comment-56264 Yeah, go ... errrm ... record labels! And HBO! More seriously, there's a disturbing overlap here between the "copyright-run-amok" literature, and the "tort-system-run-amok" literature. What we have here is a complaint -- anyone can file a complaint -- and a single court decision that so far does not appear to have traction anywhere else. It's more of a "court-and-plaintiff-run-amok" story. Yeah, go … errrm … record labels! And HBO!

More seriously, there’s a disturbing overlap here between the “copyright-run-amok” literature, and the “tort-system-run-amok” literature. What we have here is a complaint — anyone can file a complaint — and a single court decision that so far does not appear to have traction anywhere else. It’s more of a “court-and-plaintiff-run-amok” story.

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