As A Tribute To MCA: Can We Stop The War On Sampling?

from the mix-it-up dept

Mon, May 7th 2012 5:17am — Mike Masnick

Update: Apparently not. The Beastie Boys have just been sued for copyright infringement over samples on Licensed to Ill and Paul's Boutique (both albums over 20 years old).

Late last week there was the very unfortunate news of the passing of Adam Yauch, better known as MCA, one-third of the Beastie Boys. I know a few people who have known him, and people only have had the most amazingly nice things to say about the guy. Like plenty of other folks, I've spent the past few days firing up old Beastie Boys albums, and (in particular) their classic Paul's Boutique -- which Nancy Sims rightfully pointed out: "it's a sad copyright lawyer that doesn't at least own" that particular album. And that's because not only is it one of the all-time great albums, it's also well known for including hundreds of samples.

Thankfully, for the world, Paul's Boutique (and a few other classic hip hop albums) got in under the wire, before the industry started throwing around lawsuits against each other for sampling. An analysis last year of what it would cost to clear all the samples if the Beastie Boys decided to put together such an album today, when not clearing every song gets you sued. It turns out that based on how much labels seem to charge for samples, and the massive number of samples on the album, Capitol Records would have lost $20 million on the album, despite it selling 2.5 million copies.

In other words, you could not reasonably clear all the samples. There is no reasonable price.

As a result of that, of course, we can't have the next Paul's Boutique, unless it's done underground and whoever makes it gets lucky that no one spots the work and gets angry. What an incredible step backwards.

In response to all of this, the EFF has pointed out that it would be a fitting tribute to MCA to fix this problem by creating a way to make sure that samples could be used in songs:

We think it’s pretty clear that the samples the Beastie Boys used in Paul’s Boutique and that Girl Talk now uses in his records are classic examples of fair use. Unfortunately, many artists these days are nonetheless under pressure to pay licensing fees for similar uses. Despite the fact that most cases rightfully find that sampling is not copyright infringement, the mere threat of a lawsuit (and the specter of statutory damages) is enough to intimidate musicians and labels alike. This cottage market of sample licensing stands in the way of creating the next Paul's Boutique – a sad comment on MCA's legacy.

The time to come up with a new, effective licensing scheme is long overdue. Young artists should be encouraged to remix and create in all the exciting new ways that technology allows, not sidelined by expensive licensing battles. Solving this problem would go a long way in that direction and be a fitting tribute to MCA, the Beastie Boys, and the fantastic remix culture they helped foster.

Forget the Sonny Bono Copyright Extension Act, where's the Adam Yauch Right To Sample Act? We shouldn't even have to fight for our right to sample. But... such is the unfortunate state of the law.

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Filed Under: beastie boys, eff, girl talk, licensing, mca, paul's boutique, sampling

39 Comments

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That Anonymous Coward (profile), 7 May 2012 @ 5:35am

I was watching PBS (Shocking I know) and remember listening to a show where they discussed sampling from the beginning.
They were talking about how it changed the record industry, and made hiphop and other things more mainstream.

I think what made this become this giant boil on the ass for the industry... was the industry. Never willing to not try to make a few extra bucks, they went to court and demanded higher and higher awards for people "stealing" samples. So label A was saying they should get X, then label B was demanding X+ for samples they controlled. They had to have people pouring over the new tracks trying to make sure nothing was sampled, because the industry made the price to prohibitive to be done. They created this entire subset of their industry trying to squeeze hundreds of dollars from as little as 5 notes sometimes.

One example that sticks out was there was a group who went so far as to press their own vinyl to sample themselves performing the music bit they wanted, because it was cheaper to get the cover rights than the sample rights.

The labels have painted themselves into a corner this way, they are committed to the idea that a sample is worth X no matter what. They can't backdown now, or more correctly will not be the first one to do it. So what if it is a way to introduce a forgotten artist of the past to a new generation.

The online idea of attrition would have served sampling so much better than extracting fees. But sometimes they can not see that you have to change and adapt rather than try and force the world into the same old system.
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John Doe, 7 May 2012 @ 5:35am

Who says the Beastie Boys are in the clear?
You said that album couldn't happen today, but who says they are in the clear on the old album? Just look at Men at Work, they were busted for a sample of a folk song a couple decades later. So the Beastie Boys could be looking over their shoulder for 70 years after their death.
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Anonymous Coward, 7 May 2012 @ 5:54am

Re: Who says the Beastie Boys are in the clear?
If MCA is constantly looking over his shoulder after his death wouldn't that mean that current copyright is making him spin in his grave?
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PaulT (profile), 7 May 2012 @ 5:54am

Re: Who says the Beastie Boys are in the clear?
Forgive me if I'm wrong, but I believe the Men At Work case was due to plagiarism rather than sampling - i.e. the song was thought very similar to the old song rather than directly sampling. Also, IIRC, the persecution took place in Australia, meaning that different legal standards would apply.

I certainly hope that there's no risk of legal action here. Paul's Boutique, along with similar work of a number of their peers at the time, is a great example of how sampling can in itself be an art form.
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PaulT (profile), 7 May 2012 @ 5:57am

Re: Re: Who says the Beastie Boys are in the clear?
"persecution"

Hmmm... I meant to type prosecution... Freudian slip I suppose!
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Anonymous Coward, 7 May 2012 @ 6:01am

there wont be any change. the labels are too greedy and too self-serving to back down, allow change and adapt. they would rather lose millions than do 'what is right, what is sensible'. we have seen this for decades over all of the entertainment industries attitudes to everything. as for giving customers what they want? that is never gonna happen!!
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Anonymous Coward, 7 May 2012 @ 6:16am

Re: Re: Who says the Beastie Boys are in the clear?
???
I thought all samples were plagiarism is the whole point of it, to copy a piece and paste it elsewhere.
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Anonymous Coward, 7 May 2012 @ 6:25am

Evil Google to the rescue LoL

Customized Google search for Open Music Search.
https://www.google.com/cse/home?cx=002157614283018392829%3Aktlp_kp7blc&hl=en

List of 21 places to find free samples.
http://www.squidoo.com/freesounds/2495939
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Marcel de Jong (profile), 7 May 2012 @ 6:32am

Re: Re: Re: Who says the Beastie Boys are in the clear?
We demand more beheadings at 1025 F ST N.W., 10th Floor, Washington, D.C. 20004!
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Anonymous Coward, 7 May 2012 @ 6:37am

Re: Re: Re: Who says the Beastie Boys are in the clear?
Plagiarism is different than just copying something and pasting it elsewhere. That is, at most, copyright infringement.

Plagiarism involves reusing someone's work and claiming that you did it.

That is something that is much more serious than "copyright infringement", I think.
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That Anonymous Coward (profile), 7 May 2012 @ 6:46am

Re:
Not always, once they figure out they can't just buy what they want in a law, they finally look at the thing they hate and figure out if they embrace it they can make money.
I base this on the history of the Boston stran... I mean VCR.
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Anonymous Coward, 7 May 2012 @ 6:46am

Re: Re: Re: Re: Who says the Beastie Boys are in the clear?
"Plagiarism involves reusing someone's work and claiming that you did it."

Ok, that sentence is ambiguous.

"It" was referring to the work, no the act of committing plagiarism.
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non-anonymous coward (profile), 7 May 2012 @ 6:52am

Re: Re: Re: Who says the Beastie Boys are in the clear?
Actually, all samples are a sign of respect for the original artist, as well as free advertising that could not possibly result in a lost sale.
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The Infamous Joe (profile), 7 May 2012 @ 7:23am

Band-Aids
The time to come up with a new, effective licensing scheme is long overdue.

Yeah, because licensing schemes work *so* well, right? The only real solution is to make Fair Use more than just a defense against copyright infringement claims-- to codify several actions which are always Fair Use, and to have sampling fall under it.
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Rich "Forge" Mingin (profile), 7 May 2012 @ 7:51am

Re: Band-Aids
Well, the straw man that the **AA would set up to oppose you would be super-sampling; where I take your song in it's entirety, and play it as a 'sample' between my very artistic one second of silence at beginning and end.
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The Infamous Joe (profile), 7 May 2012 @ 8:03am

Re: Re: Band-Aids
I feel that economics would be able to handle that. Why would I listen to the "sample" you suggest, versus going to the source? (Or, if I'm a "filthy freetard", why wouldn't I just pirate the actual song without a second of silence?)

It's not even a very good straw man. (That's not to say it wouldn't be used, of course.
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Cowardly Anonymous, 7 May 2012 @ 8:14am

Re: Band-Aids
Not feasible.

On the other hand, placing high penalties (including damages) on a false claim would mean that the MPAA would have to be sure they had a solid case. This would empower Fair Use as a detterrent to litigation instead of merely a defense against it.

Small changes in the right spot can have substantial effects. Sweeping changes usually have detrimental effects and should only be considered when it can be shown that the fundamental theory behind the model is broken.

The problem exists at the implementation level, not the design level. Address it there.
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G Thompson (profile), 7 May 2012 @ 8:18am

Re: Re: Re: Re: Re: Who says the Beastie Boys are in the clear?
"It" was referring to the work, no the act of committing plagiarism.{emphasis added and left as mispelt]

Yep, very ambiguous . *runs*
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The Infamous Joe (profile), 7 May 2012 @ 8:19am

Re: Re: Band-Aids
You are assuming a level financial playing field. If I can't afford a lawyer to go to court at all, then the situation you describe is not helpful. In the situation I describe, it would never make it to court.
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Benjo (profile), 7 May 2012 @ 8:24am

Re: Re: Band-Aids
I'd say a system that requires a judge/jury to determine whether some piece of art is infringing or fair use is definitely a design level issue. Judges shouldn't have to be art/music critics.
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Benjo (profile), 7 May 2012 @ 8:27am

Re: Re: Re: Band-Aids
Exactly, the first few people to try counter suits against these huge corporations would have to fight through appeals court after appeals court. The major labels wouldn't even care too much if they lost, as they could clearly show it is not economically feasible to try to take them to court.
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Baldaur Regis (profile), 7 May 2012 @ 8:42am

Re:
I recently read a monograph by an entertainment lawyer involved in the early use of sampling. Among other things, this lawyer argued that a sample was infringing even after post-processing made it completely unrecognizable from the original sample. The threat behind such thinking is implicit: a random track from a song by artist A could be re-manipulated into something recognizable as coming from artist B, who could then sue for infringement.

And here's my point - when an industry is focused solely on maximizing profits, the advice it listens to tends to be extremist; institutional paranoia is almost inevitable. What do music labels actually do? Essentially, produce and package other peoples' creativity. The only thing they are capable of actually creating themselves are rottweiler lawyers.
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Cowardly Anonymous, 7 May 2012 @ 8:43am

Re: Re: Re: Band-Aids
At that point, we are addressing a different problem, which I would agree is a design issue, if it is a problem. The issue I was addressing was the way in which the MPAA abuses the current system. That issue is obvious, whereas the other may just be a symptom of the pressure on judges due to the abuse. Attempt the small fix first, it's more efficient.
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Cowardly Anonymous, 7 May 2012 @ 8:47am

Re: Re: Re: Re: Band-Aids
Not at all what I was suggesting. No counter law-suits, but rather an award to the defendent for all fees if they win and damages assessed to the prosecution (automatically) if they lose.

Some of these automatic damages would go to the defendent for time costs, where as others could be used to provide for a defense for those who can demonstrate the inability to hire their own lawyer.

Again, these issues you bring up here can be addressed at the implementation level.
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John Fenderson (profile), 7 May 2012 @ 8:51am

Re: Re:
when an industry is focused solely on maximizing short term profits

FTFY.
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varagix, 7 May 2012 @ 9:23am

Re:
Attribution, you mean? Though I suppose attrition would be a good word to describe the content industries' battle against the Internet.
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weneedhelp (profile), 7 May 2012 @ 12:15pm

Crushed
I just got back from vacation and found out here.

Sadness fills my heart.

R.I.P. MCA. You will be missed, but never forgotten.
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mudlock (profile), 7 May 2012 @ 12:19pm

"We shouldn't even have to fight" (NA NA)
"for our right" (NA-NA-NA)

TO SAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAMPLE!

...

Clearing all these songs is such an aggravation
(na na na, na na-na na)

Their lawyer through away our request application
(na na na, na na-na na)
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Anonymous Coward, 7 May 2012 @ 1:10pm

Re:
there is no war on sampling, there is only a war on artists.

http://thetrichordist.wordpress.com/2012/05/03/roll-call-musicians-for-an-ethical-internet/
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Ophelia Millais (profile), 7 May 2012 @ 1:50pm

Re: Who says the Beastie Boys are in the clear?
[i]Paul's Boutique[/i] shows up in a lot of third-party anecdotes about being "unreleasable today" but I have yet to see any quotes to that effect coming from the record companies. to the contrary, Capitol released a 20th Anniversary remastered reissue of the album in 2009. I would assume they did their sample-clearance homework beforehand.
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Anonymous Coward, 7 May 2012 @ 2:45pm

Re: Re:
Nice hit piece. Care to back up any of the claims made there-in with studies from neutral parties instead of hearsay by prosecuting attorneys with no believable evidence?
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Anonymous Coward, 7 May 2012 @ 2:49pm

Re: Re: Re: Re: Who says the Beastie Boys are in the clear?
Except that plagiarism isn't necessarily illegal in the US, so how is it more serious?
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That Anonymous Coward (profile), 7 May 2012 @ 8:44pm

Re: Re:
Its one of my failings, I sometimes mistype what I am thinking. I try my best to proof my posts but sometimes they slip through.
But yes Attribution would have been a more amazing answer to the requirements of sampling. While some hiphop tracks had hundreds of samples and it would have been daunting to list them all, I think they would have been more willing to keep better records of them and give the credit more than trying to fight off the lawyers trying to get $300 per sample.
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Anonymous Coward, 7 May 2012 @ 11:10pm

Re: Re: Re:
do you really not understand how money is made by google and online? it's called advertising and it's not terribly complex.

here, let google's chief economist Hal A Varian educate you, as he did John Perry Barlow...

http://thetrichordist.wordpress.com/2012/05/01/effs-john-perry-barlow-is-wrong/

yikes! your own people don't agree with you, even the ones running the largest most successful companies... uh oh...
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PaulT (profile), 8 May 2012 @ 12:12am

Re: Re: Re: Re:
"your own people"

I love the way that your "everybody who disagrees with me is paid by Google!" paranoid delusion even extends to other ACs...
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Mike Masnick (profile), 8 May 2012 @ 1:22am

Re: Re: Re: Re:
here, let google's chief economist Hal A Varian educate you, as he did John Perry Barlow...

http://thetrichordist.wordpress.com/2012/05/01/effs-john-perry-barlow-is-wrong/

I was curious about this as it did not mesh with what I remember from Information Rules. So I pulled out my copy of the book and found (not surprisingly) that you pulled the quotes totally out of context. Each paragraph comes from a different part of the book, and you leave out a TON of other information between those comments.

I'd do a takedown, but why bother.
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Samuel Abram (profile), 8 May 2012 @ 6:11am

Here's an idea: Compulsory License for sampling
Jason Mazzone, in his book "Copyfraud and other abuses of Intellectual Property" has a suggestion that there should be a compulsory license for sampling � la cover songs. I am fully on board with that. That way, more money could be made by the original copyright holders and more creativity would flourish, which is what is copyright's original goal is supposed to be (and of which Congress has unfortunately lost sight).
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Anonymous Coward, 8 May 2012 @ 9:41am

Re: Re:
What, polluting the thread from El-P wasn't enough for you?

FFS, make an account, or put a name to your snowflake, so you can show that you actually have some skin in this debate. Otherwise people will continue to treat you like the stuck-up douchenozzle idiot you're portraying yourself as.
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Anonymous Coward, 8 May 2012 @ 7:20pm

MCA maybe. Fox possibly. Disney perhaps. Sony NEVER!
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