The kicker is that while sample trolls are bad for artists, they're also bad for mainstream record labels. Record labels want to get out new music at minimum cost. But if clearing rights in the Bridgeport world costs a fortune, production becomes that much more expensive, and innovative music that much riskier a bet.
What, if anything, can be done? In the big picture, copyright must continually work to ensure that the basic building blocks of creativity are available to artists and creators, especially as new forms of art emerge. We already know what this means for novelists: freedom to use facts, borrow stock characters (like Falstaff) and standard plots (the murder mystery). For filmmakers, it means the freedom to copy standard shots (like TheMagnificent Seven's "establishment shot"). For rap music, it means the freedom to sample. Rap's constant reinvention and remixing of old sounds makes it what it is; now is the time for the copyright system to get that. Vibrant cultures borrow, remix and recast. Static cultures die.
Legal solutions to the sample-troll problem are relatively easy—much easier than fixing the patent-troll problem. First, there's only one appellate court, the 6th Circuit, that takes the ridiculous position that any sample, no matter how minimal, needs a license. Most copyright scholars think the decision is both activist and bogus—in the words of leading commentator William Patry, "Bridgeport is policy making wrapped up in a truncated view of law and economics." Other courts can easily counter Bridgeport. They just need to say that the infringement rules for sampling are the same rules that apply for the rest of copyright. Dumbledore may resemble Gandalf, but he's no infringement. Similarly, if you can't even recognize the original in a sample, it shouldn't violate federal law to use it.
Congress could also easily act against the sample trolls. All that is needed is a "sampling code": a single section of the law that declares the usage of some fixed amount of a sound recording, say, seven notes or less, to be no infringement of the copyright law. That would give artists a simple rule to live by, while still requiring licenses for big samples that would compete with the original. It's a win-win scenario. With a single line of code, Congress can make this problem go away.
In the end, it's probably wrong to suggest the sample trolls are evil or hate rap music. The trolls simply look for profit, like any business, and are rational and predictable, like the mold that grows on rotten meat. None of these problems would be quite so severe if artists actually controlled their own copyrights. George Clinton's copyrights end up blocking sampling, when he himself favors sampling. "When hip-hop came out," said Clinton in this interview with Rick Karr, "I was glad to hear it, especially when it was our songs—it was a way to get back on the radio."
Copyright is supposed to be the servant of artists, but today that is all too often just a pretense. The vast majority of the nation's valuable copyrights are owned not by creators, but by stockpilers of one kind or another, and Bridgeport is just a particularly pernicious example. We need better devices to keep the control of the most valuable of artist's rights with artists. For, to paraphrase Judge Learned Hand, copyright was born to protect and liberate musicians, but it all too often ends up enslaving them.
Click here to see the complaint in the Jay-Z case.
Correction, Nov. 16, 2006: The article originally and incorrectly stated that It Takes a Nation of Millions to Hold Us Back was Public Enemy's first album. In fact, it was the group's second. (Return to the corrected sentence.)