Studies show that when people do not know the facts about a given topic or issue, they rely on conjecture and misinformation. Conversely, when people know the facts about a given topic or issue, they tend to engage with it in a confident, informed, and reasonable manner. But then there’s also the issue of confirmation bias to wrestle with.
Author and journalist Elizabeth Kolbert has noted that “[o]nce formed…impressions are remarkably perseverant,” and that with regards to confirmation bias, people have a tendency “to embrace information that supports their beliefs and reject information that contradicts them. If reason is designed to generate sound judgments, then it’s hard to conceive of a more serious design flaw than confirmation bias. Mercier and Sperber prefer the term ‘myside bias.’ Humans, they point out, aren’t randomly credulous. Presented with someone else’s argument, we’re quite adept at spotting the weaknesses. Almost invariably, the positions we’re blind about are our own….”
In this paradigm, there’s “little advantage in reasoning clearly,” while much is “to be gained from winning arguments. Sloman and Fernbach see this effect, which they call the ‘illusion of explanatory depth,’ just about everywhere. People believe that they know way more than they actually do. What allows us to persist in this belief is other people….Where it gets us into trouble, according to Sloman and Fernbach, is in the political domain. It’s one thing for me to flush a toilet without knowing how it operates, and another for me to favor (or oppose) an immigration ban without knowing what I’m talking about.”[1]
I agree with Kolbert, people often avoid reasoning clearly in favor of winning arguments. And facts are quickly cast aside if it means winning the argument. This is the climate of most copyright law discussions. Many people ignore facts, especially when they’re inconvenient to their argument and position. And once an impression sets in with someone, it is remarkably perseverant and difficult to change. This, at the base, is how and why marketing works. A campaign of disinformation — which is really a marketing campaign intended to boost the authority of the side of who is disseminating the disinformation — is designed to drown out the truth and implant false information in the public psyche. Once people have the impression of something, regardless of the facts, their opinion is not likely to change; and they are even less likely to investigate the issue further, opting instead to accept their opinion as fact. This is the situation that we see in the debate about sampling and in the implications that it holds for copyright law.
The impressions around sampling and copyright law that are generally held by the public are the product of a campaign of disinformation that is led primarily by two groups. The first group is composed of members of the music industry, specifically, members of the sample clearance ecosystem, who ignore the de minimis and fair use safe harbors of copyright law and insist that all samples must be cleared. The second group is made up of those copyright owners who believe that the sole purpose of copyright law is to protect the work of copyright owners.
Both of these groups suffer from confirmation bias (“myside bias”), the tendency people have to embrace information that supports their beliefs and reject information that contradicts them; and each group does not respect the full breadth of copyright law. The only way to fight these two groups, the only way to successfully counter a campaign of disinformation, is to market fact-based information to the people who need it most: sample-based beatmakers (producers), in specific, and the public in general. Once fact-based information takes hold amongst the public, the dialogue changes and the tables are turned.
Copyright law is complicated, not complex. People often mean complicated when they say complex, but there’s a difference. To help you understand, think of it like this: Relationships are complicated. Rocket ships are complex. You can understand copyright law with fact-based knowledge and historical perspective; you can’t really understand how rocket ships work unless you’re a rocket scientist. But there are those who want you to believe that copyright law is terribly complex (like a rocket ship). They want you to believe that copyright law is so complex that’s it’s not even worth your time or effort trying to learn about it; that such knowledge is not attainable by everyday people; that such knowledge is better left to lawyers, copyright law scholars, and music industry folks. And as if that wasn’t problematic enough, there remains the socio-psycho reality that people often believe that they know more than they actually do, and therefore, they randomly spread inaccurate information.
Taken together, these factors — the intentional campaign of misinformation, the unintentional spread of misinformation, and the authoritarian (elitist) attitude that knowledge of copyright law is beyond the purview of the general public — create an echo chamber full of incomplete or misrepresented truths, half-truths, outright lies, double talk, conjecture, and disconnected facts. In other words, the result is a bunch people favoring or opposing sampling, favoring or opposing absolute sample clearance (and arguing loudly) without knowing, to a lesser or greater degree, what they’re talking about.
A debate about sampling and copyright law in this climate favors two groups of self-appointed authorities that I mentioned earlier: The members of the music industry and sample clearance ecosystem who ignore the de minimis and fair use safe harbors of copyright, law and who insist that all samples must be cleared, and those copyright owners who believe that primary objective of copyright law is to protect the rights of copyright owners. The unchecked status of these two groups enables them to market the big lie: “All samples must be cleared.” But all samples don’t have to be cleared, because no sample (i.e. the usage of a portion of a copyrighted work) is inherently copyright infringement.
Lawyers are certainly critical to this discussion, but they are not the saving grace. Your own knowledge of copyright law and key copyright infringement cases are equally important. You have to know the critical how’s and why’s of copyright law in order to dismantle misinformation. The basis for the music industry’s “all samples must be cleared” stance is not based on the facts of copyright law. Rather, it’s the result of two factors. First, Bridgeport, the copyright infringement case in which the Sixth Circuit of Appeals infamously stated: “Get a license, or don’t sample.” Second, the perceived risk related to losing a copyright infringement case.
As for Bridgeport, it has been debunked by other circuit courts, most notably the Ninth Circuit, which specifically created a split circuit around the applicability of de minimis to sound recordings. The Ninth Circuit asserts (correctly) that de minimis does apply to sound recordings. Thus, a reliance on Bridgeport at this point is both willful ignorance and willful deception.
As to perceived risk, are there risks involved when a copyright infringement case goes to trial? Yes. But all copyright infringement lawsuits are decided on a case-by-case basis. And as with any lawsuit, the likelihood of one result or another can be determined, to greater or lesser degree, by the specific facts and details of the individual case. For example, on the surface, sampling a drum snare from a 5-minute rock ‘n’ roll song and using that sound in the creation of a hip hop/rap song — complete with a new beat and new lyrics — is clearly transformational, and more than likely de minimis if not fair use. In a scenario such as this, a defendant who seeks summary judgment on the grounds that his usage was de minimis and fair use would likely be granted summary judgment by a judge. But even in presumably clear-cut scenarios such as these, the music industry projects the fear of losing. This provokes the “clear everything” approach, regardless of the type of sample, the amount of the sample, or its transformative use.
But here’s the thing. If you don’t already have a solid (or even introductory) understanding of copyright law, there is no single web page or series of articles that’s really going to give it to you. Copyright law is not something that you can grasp in a single Wikipedia search. None of your favorite music publications (especially hip hop) will be able to help you understand copyright law with any serious depth, because they only cover copyright law from a sensationalist, “breaking news,” slant. And practically none of their writers or editors have a firm understanding of the full extent of copyright law.
One reason for this is because copyright law is one of the deepest of deep dives. To fully grasp and appreciate copyright law, to really get a feel for it, you have to commit to serious research. Research that is focused and free of confirmation bias. And without a guide to help lead you, it’s difficult to learn, especially with all of the howling inaccuracies often published by the media today. Not to mention the fact that most of the information on copyright law that exists online is one-sided, misleading, incomplete, or all of the above — And this is coming from both the hard-nosed copyright owners and the “free culture” people, who tend to think that copyright law shouldn’t even exist.
There are different layers to copyright law and, ironically, it tends to be the simple layers that many copyright lawyers commonly distort or misstate when building either affirmative or defensive strategies in copyright infringement lawsuits. Incidentally, I have read hundreds of copyright infringement cases involving everything from photos to blankets to compositions to sound recordings to plays to movies, and I can tell you that even many copyright lawyers often seem to be confused about the facts of copyright law.
Thus, what this part provides is a thorough examination of copyright law, an examination which is fact based, comprehensive, unbiased, and accessible. This part explores copyright law as it is. And it includes examples, wherever applicable, for how certain aspects of copyright law and related policy can be improved. That said, if you know little to nothing at all about copyright law, when you’re done reading this part, you will come away with a solid understanding of copyright law. And if you’re already quite familiar with copyright law, I assure you that this part will enhance your understanding.
