Now that the 6th Circuit Court of Appeals has ruled that any sample of any piece of music is a violation of copyright, I wonder where the world is supposed to go next? The issue is a fundamental one in my mind, and not some squabbling over money and who deserves to get paid for what. If complaints are just about money, then it could be argued that an artist who doesn't make any money, or doesn't make a significant amount from his/her work should be more entitled to sample things because there is no financial gain being made as a result of the sampling. The court is arguing that the owner of the original music is entitled to compensation for its use, which isn't a statement about creativity; it's a statement about money. If there is no money to be made from sampling a Bruce Springsteen tune and looping it and rapping over it and then pressing up 500 copies of a 12" to sell at a loss, then there's never going to be a court case for the owner of the Springsteen tune to seek damages or compensation. In other words, while the court defines any sampling as illegal, in practical terms, any sampling that doesn't earn you money is really just fine. Obviously that's taking it to an extreme, but it points out the problem when you have a court making a decision about money and then talking about creativity.

The court's statement said "Get a license or do not sample. We do not see this as stifling creativity in any significant way." What? Under what rock do these judges reside, and over what barren stretch of cornfields do they preside? (Cincinatti, if you are curious, home to one of the world's most egregious sample abusers, Enduser!) There are not only artists and labels devoted to sample-based music, there are whole genres and industries that are completely indebted to it! Rap and Hip-Hop are nothing without the appropriation of other music. Sure, some of it is egregious and lazy and we all wish we'd never have to hear P-Diddle turn a classic track into a dumbed-down, looped version with a mumbling rapper over it ever again. Then again, that dipshit PAYS for his samples anyway, so he can do whatever the hell he wants. But leave the Diddles and the Ice Ice Babies out of it and what you have is the collective world of Rap and Hip-Hop and all of the other musical forms it has spawned that are all based on riffing over a recognized loop. Some producers have take the "recognized" part out of the equation, but they almost all unanimously still sample. Without sampling, we'd have no "Midnight in a Perfect World," no Paul's Boutique, no Portishead, no Jungle or Drum-n-Bass, and certainly no Front Line Assembly. Think about that for a minute.

The court is saying that it doesn't stifle creativity to force artists to pay for and seek licenses for samples, no matter how manipulated or destroyed or otherwise recontexturalized they may be. Well, tell that to the entire artist rosters of Wax Trax, Def Jam, Mush, Metalheadz, and on and on and on. Sampling takes many forms, from the lazy reappropriation of a melody or beat (Puff Dingle) to the mash-up pop-cultural send up of Donna Summer and the like. There's simply no way 95% of the music that I enjoy could even exist if the artists had to clear and pay for all the samples. Do you think metal bands want to be turned into self parody a la Donna Summer? They'd never give up the rights at any cost. Does Missy Elliot want to hear herself rhyming over 7/4 time splattercore breakbeats? Probably not, but the fact is that the rest of us DO! Not only is there a massive world-wide audience for that kind of stuff, but it's growing and spreading its influence every day.

Look, the world of owning things is coming to an end. Sure, physical objects can be posessed, but everything else that can be translated into 1's and 0's is becoming just another byte in the datastream. Postmodernism is expressing itself through the constant re-use and reappropriation of any and everything imaginable. It's what makes movies like Kill Bill possible-that's a movie cut with the rhythm and heart of a Hip-Hop record. The world we live in now works off of and thrives on references. We have instantiated the hyperlink into everything, and what is a link but a reference? It's a bookmark or a snapshot that points you somewhere else, to some other place in space or time where you can read more, do more, see more, or hear more about something. It's a shorthand, sure, but it's the way we all interact with things now. In short, sampling isn't just a way for lazy people without any chops to make music (although it CAN be that), but on a grander scale, it's THE musical cue of our age. Sampling is the defining next step in a history of musical composition that dates back to primitive cultures banging on animal skins and sticks. From early tape experiments to music concrete to early hip-hop, jungle, and now mash-ups and breakcore and just plain pop music: sampling has proven more times over than can be counted that it is a vital creative process. It leads to new works, new understandings of old works, and to heretofore unseen artistic directions that absolutely would not and COULD not exist without it.

I'm sure it's only a matter of time before this blows over like every other similar decision, but the saddest part is that the judges who rendered the decision really have no idea what they are talking about. Somebody get me an address and I'll personally mail each of them a copy of Enduser's From Zero and we can talk about it after that.