The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music

Home , Bridgeport Music, I Need a Haircut

Vanderbilt Journal of Entertainment & Technology Law

Volume 7 Issue 3 Issue 3 - Summer 2005 Article 7

2005

Matthew S. Garnett

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Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons

Recommended Citation Matthew S. Garnett, The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music, 7 Vanderbilt Journal of Entertainment and Technology Law 509 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol7/iss3/7

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[By Matthew S. Garnett*]I

he digital sampling controversy is right?6 "the student author's favorite The Bridgeport Music court responded dead horse."' Over the past de- with an iron gavel: "Get a license or do not cade, more than 100 legal articles, sample." 7 The court interpreted §114(b) of commentaries and student notes the Copyright Act of 1976 ("Copyright Act") have dealt with digital sampling to prohibit any unauthorized sampling where 2 and its relation to copyright law. "the actual sounds [in the original] recording In addition, the various constituencies in are rearranged, remixed, or otherwise altered the music industry, such as artists, compos- in sequence or quality."8 Consequently, the de- ers, producers, and recording executives, have fensive tools of copyright infringement, such

"... the bright-line rule announced in Bridgeport Music should not apply where the disputed digital sample appropriates only the'sonic' ideas of the original work." also trumpeted their perspectives.' In gen- as substantial similarity and de minimis tests, eral, the viewpoints expressed by interested are unavailable to even the most quantitatively parties reflect "whose ox is being gored."4 Un- trifling or qualitatively transformative til the landmark ruling by the Sixth Circuit in sample.9 No matter if one samples 20 sec- BridgeportMusic, Inc. v. Dimension Films, how- onds or 20 milliseconds, and irrespective of ever, neither the courts nor Congress 5 had di- how one slices, loops, filters, layers, or rectly addressed an essential question in the stretches a sample, the Sixth Circuit has digital sampling debate: to what extent, if any, adopted the Biblical attitude expressed in may an artist digitally sample another's work Grand Upright Music, Ltd. v. Warner Bros. without infringing the sound recording's copy- Records, Inc., ("Grand Upright"), the prime MUSIC mover in the digital sampling debate: "Thou from of a previous recording and placing them shalt not steal." 10 in a new musical work.13 In the context of digi- Notwithstanding the Bridgeport Music tal sampling, "digital" refers to a set of binary decision, the text of §102(b) of the Copyright numbers representing an audio waveform. 14 Act plainly prohibits the extension of copyright These "numbers" are determined through the protection "to any idea, procedure, process, repeated measurements of the fluctuating elec- system, method of operation, concept, prin- trical currents, or analog electrical signals, com- ciple, or discovery, regardless of the form in monly known as sounds.1 5 Because it is impos- which it is... embodied."11 This Note argues sible to listen to numbers directly, every sam- that the bright-line rule announced in Bridge- pling system has both an Analog to Digital Con- port Music should not apply where the disputed verter ("ADC") and a Digital to Analog Con- digital sample appropriates only the "sonic" verter ("DAC"). 16 The ADC converts the elec- ideas of the original work. The main thrust of trical voltage of sounds into numbers, and the this argument is that the Sixth Circuit's hold- DAC converts the numbers back into voltages ing in Bridgeport Music is inapplicable where that can be output through audio speakers.17 the disputed copying is a protected exercise of Digital sampling, therefore, has three discrete "fair use" reverse engineering; that is, where stages: (1) recording the "sonic" numbers in the copying is necessary to appropriate the "sonic" sample; (2) editing (or not editing) the sample ideas embodied in the sampled work. with digital audio devices; and (3) playing back Part II of this Note presents a brief his- the modified (or unmodified) sample. tory of digital sampling, including its applica- In 1979 the first digital sampler hit the tion in the Hip-Hop musical genre. Part III pre- commercial market: The Fairlight CMI (Com- sents a walkthrough of the Bridgeport Music puter Music Instrument). 8 At a cost around decision, including its procedural history, the $30,000, the Fairlight CMI was "dubbed" prac- lower court's decision, and the Sixth Circuit's tical, and its early champions included Stevie recent amendment of its own opinion. Part IV Wonder and Peter Gabriel.' 9 A popular appli- presents an analysis of BridgeportMusic, includ- cation of early digital sampling systems was to ing reference to the recent eruption of academic record and playback "real" instrumental sounds and public reaction to the case. Part V sets aside (e.g. individual recordings of notes of brass in- the bulk of prior digital sampling scholarship struments, grand pianos etc.). 20 Limitations in to open a new front in the debate: the computer memory, the high costs of proces- "Electronica" musical genre, the "Downhill sors, and compatibility problems between dif- Battle" protesters, and the innovative applica- ferent manufacturers of samplers, synthesizers, tions of digital sampling common to Electronica and other digital audio devices made this prac- Music. Part VI argues that certain uses of digi- tice almost inevitable. 21 tal sampling in Electronica composition are The existing compatibility problems protectable acts of reverse engineering, and were solved in 1983 when industry-wide coop- therefore immune from the Sixth Circuit's "Get eration produced the Musical Instrument Digi- a license or do not sample" missive. 12 Part VII tal Interface ("MIDI"). 22 MIDI allowed digital concludes that, while the result in Bridgeport samplers, synthesizers and sequencers pro- Music is probably justified, its moratorium on duced by different manufacturers to commu- all unlicensed sampling is an improvident at- nicate seamlessly.23 As the 1980's progressed, tempt to copyright uncopyrightable "sonic" moreover, rapid advances in digital and com- ideas. puter technology, coupled with the increased affordability of computer memory and processors, worked to release the creative harness on 1. A Brief (and Incomplete) History digital sampling.24 For instance, technological of Sampling developments allowed a sampling artist to iso- late sounds from a particular instrument on a A. The Life and Times of Digital recording, such as a single note from a Miles Sampling Davis trumpet performance or a John Bonham Sampling is the act of taking "sounds" drum "kick," and then digitally alter its sonic The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music characteristics to form, respectively, either an Jay Kool Herc, who brought his manually elaborate jazz solo or an entire percussion en- spliced "funk" beats to street corners and recre- 25 semble. ation centers in the South Bronx (New York 29 Today, synthesizers, effects processors, City). This musical fashion quickly evolved into sequencers and drum machines all work along- the musical and cultural revolution known as side the digital sampler, and are often bundled "hip-hop."30

... any person with a microphone, a computer, and either a substantial compact disc collection or access to the Internet, can produce commercial rap music" into software packages for personal comput- Throughout the mid-1970's and early ers. Deep-pocketed musicians and recording 1980's, disc jockeys became increasingly cre- studios no longer represent the exclusive mar- ative in their use of turn-tables. For example, ket for sampling systems. Software products they experimented with a record's playback such as "Gigastudio 160," "Cubase SX," and speed, they "looped" rhythm arrangements of "Reaktor 4" incorporate all the constituents of a song by mixing two copies of the same record, a professional recording studio, and each prod- and they "scratched" one or more records to uct is available for less than five-hundred dol- create unique rhythmic and arguably cacopho- lars.2 6 The result is that any person with a mi- nous sounds.31 Given that these techniques crophone, a computer, and either a substantial often involved prodigious manual dexterity, it compact disc collection or access to the Internet, is hardly surprising that many disc jockeys can produce commercial rap music. 27 The func- viewed themselves as musicians and their turn- tionality and affordability of digital audio equip- tables as musical instruments. ment is therefore bereft with both benefit and With the advent of digital sampling and liability: a society of potential recording artists, rapid technological advances in the early 1980's, but also a society of potential digital sampling however, hip-hop producers discovered they bandits. could easily recreate a disc-jockey's performance with the digital sampler, often using the B.Digital Sampling in the Hip-Hop sampler in conjunction with other emerging Musical Genre digital audio equipment.32 Despite a traditional disc-jockey's ability to dazzle audiences with his 1. The Hi p-Hop Turn-table craftsmanship at the turn-table (and his con- Dee-Jay: rom the South tinued relevance as a performing artist), he nev- Bronx to Studio Extinction ertheless faced extinction in the music studio. 33 The first musical sampling (which was not digital) is generally credited to Jamaican 2. Hip-Hop Sampling as Cul- disc-jockeys in the 1960's that would, through tural Communication, Theft, the use of phonograph turn-tables, combine the or Both? sounds of previous recordings to create a vari- Commercial reality cannot be ignored. ety of original rhythms and arrangements. 28 In Sampling in hip-hop music is a breakthrough the early 1970's, the United States was intro- musical innovation, and also is credited as an duced to sampling by Jamaican expatriate Dee- important cultural communication device. 34

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Further, sampling is fairly described as a "grunts," should also exist outside the public "mother of invention," given Hip-Hop's roots domain.40 in economically depressed areas where aspir- ing artists could financially facilitate little more than "two turntables and microphone." None- II. "Walk this Way" as We Run theless, despite sampling's value as a nostalgic Through Bridgeport Music patchwork of musical and cultural expression, its proliferation raises the question: are Hip-Hop A. Hip-Hop[ping] Into a Sound musicians thieves if they do not first obtain li- Recording Lawsuit censes from the copyrighted works they On May 4, 2001, plaintiffs Bridgeport sample?35 Or is digital sampling in the Hip-Hop Music, Inc. ("Bridgeport") and Westbound musical genre merely the modern manifesta- Records, Inc. ("Westbound") brought a copy- tion of "a time honored [and protected] prac- right infringement action 41 against over 800 tice [of borrowing in] all the creative arts?"36 defendants, mostly record companies and other Two different perspectives, amongst music publishing entities, that had distributed dozens that impregnate the digital sampling musical works that allegedly sampled, without debate, come from two of Hip-Hop's most fre- authorization, portions of 476 George Clinton

patchwork of musical and cultural r expression,"... despite sampling's its proliferation value as araises nostalgic the L question: are Hip-Hop musicians thieves if they do not first obtain licenses from the copyrighted works they sample?" a

quently sampled artists, George Clinton and songs.42 In August, 2001 the original complaint James Brown. Clinton, a pioneer of the "funk" was severed into separate actions, including musical genre, is a member of an emerging an action alleging that "gangsta" rap pioneers school of recording artists who seek to encour- NWA, in their song "100 Miles and Runnin'," age Hip-Hop musicians (who lack the resources ("100 Miles") infringed Westbound's sound re- to pay upfront licensing fees) to freely create in cording copyright in George Clinton's perfor- their pursuit of artistic and commercial suc- mance of "Get Off Your Ass and Jam" ("Get 4 3 cess.3 7 Towards this end, Clinton released two Off"). albums in 1992 called "Sample Some of Dis Defendant No Limit Films ("No Limit"), [sic]" and "Sample Some of Dat [sic]" in an ef- a licensee of "100 Miles," distributed the song fort to provide up-and-coming artists with as part of the soundtrack to its movie release "I samples they could use without immediate le- Got the Hook Up."44 On June 21, 2002, No gal scrutiny.38 On the other hand, Brown, af- Limit filed a summary judgment motion in the fectionately known as the "Godfather of Soul," Middle District of Tennessee claiming that has exclaimed: "Anything they take off my Westbound's action for copyright infringement record is mine. Is it [alright] if I take some paint of "Get Off's" sound recording should be dis- off your house and put it on mine?" 39 Many missed because "(1) the portion of "Get Off" musicians feel that because the Copyright Act that was copied was not original and therefore does not require a copyright holder to grant a not protected by copyright law; [and] (2) the compulsory license to anyone, then short snip- sample of "Get Off" [was] legally insubstantial pets of music, such as Brown's distinctive and... [did] not amount to actionable copy-

Summer 2005 512 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music ing. terpreting the Copyright Act55, the District Court The parties did not dispute that "100 found that for Westbound to establish infringe- Miles" contained an edited two-second sample ment of "Get Off's" sound recording copyright, of the introduction to Clinton's "Get Off." "Get it must demonstrate: (1) copyright ownership Off" begins with a three-note guitar riff on an of "Get Off;" (2) that "100 Miles" actually unaccompanied electric guitar, and lasts for ap- sampled "Get Off;" and (3) that the sample proximately four seconds. The three-note ar- amounted to an unlawful appropriation because peggio is repeated several times, and the "ra- its edited use in "100 Miles" was "substantially pidity of the notes and the way they are played similar" to the original work.56 Because copy- produce a high-pitched, whirling sound that right ownership and actual copying were not captures the listener's attention and creates an- contested (for purposes of No Limit's motion), ticipation of what is to follow." 46 In "100 Miles", the District Court was charged with determin- a two-second portion of the riff is sampled, ing whether the use of "Get Off" in "100 Miles" "looped," and then slowed down (resulting in "crossed the threshold of substantial similarity a lowered pitch) to match the tempo and ar- as to constitute actionable copying." 7 rangement of the song.47 The "looped" version b. If De Minimis, No Sub- of the sample lasts for approximately seven sec- stantial Similarity onds and appears five times throughout the In its opinion, the District Court noted song.48 Whereas in "Get Off" the unaccompa- that when evaluating the "substantial similar- nied riff produces "a rising sense of anticipa- ity" prong of copyright infringement, the Sixth tion," its edited use in "100 Miles" "evokes the Circuit has recognized that "the law cares not sound of police sirens" and is layered into the for trifles," and that over-enforcement of copy- 58 background of the song.49 right laws may unjustifiably stifle creativity. In the view of the District Court in Bridgeport B. "Get[ting] Off" the "Hook": The Music, then, a "trifling" or de minimis instance District Court's Opinion of copyright infringement was not legally actionable because it did not rise to the level of 1. The Originality Claim the substantial similarity required for action- 59 Under the Copyright Act, only "origi- able copying. nal works of authorship" are entitled to copy- 5 right protection." No Limit Films argued that "'Hook"'c. "Get[ting] Off" the because the three-note arpeggio sampled in "100 Miles" was "a commonly used collection The District Court agreed with No Limit of notes" it was unoriginal and a invalid basis that the "Get Off" sample used in "100 Miles" for an infringement action."' In rejecting No was de minimis, and therefore not substantially 60 Limit's challenge, the District Court noted that, similar to George Clinton's original recording. in a sound recording infringement suit, it is "the It first compared the two works as a whole, dis- aural effect produced by the way the notes in tinguishing "Get Off" as a "celebratory song" the ["Get Off" sample] are played" that are the about dancing, whereas NWA's "100 Miles" rep- subject of the originality inquiry, not the col- resented a fictional narrative about four men lection of notes themselves. 52 The District court being pursued by the Federal Bureau of Inves- concluded that No Limit's originality challenge tigation ("F.B.I."). 61 The District Court also failed because "a jury could reasonably con- found that "there [were] no similarities in mood clude that the way the arpeggiated chord is used or tone" between the edited "Get Off" sample 53 and memorialized.., is original and creative." used in "100 Miles" and its unedited use in the original Clinton recording. 62 It concluded that 2. The "Legally Insubstantial" no jury, even one familiar with George Clinton's Claim records, "would recognize the source of the ["Get Off"] sample without [being] told."6' On a. The Substantial Simi- this basis, the District Court granted No Limit's larity Requirement motion to dismiss and held that NWA's use of Not all copying is infringement.54 In in- "Get Off" was de minimis, and therefore not the

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proper subject of an infringement action.64 The Sixth Circuit, recognizing the "dearth of legal authority.., and the importance C. Back in the "Dead Horse's" of the resolution of this issue," announced that Saddle: The Sixth Circuit Opinion the "music industry, as well as the courts, [were] best served" by the declaration of a bright-line 1. The Racing Grounds of test to be used in resolving sound recording Westbound's Appeal infringement claims.71 The Sixth Circuit de- Westbound, along with Bridgeport (ap- clared, "Get a license or do not sample."72 In- pealing on a separate issue) filed its notice of quiries into de minimis infringement and sub- appeal in the Sixth Circuit Court of Appeals on stantial similarity simply do "not enter the equa- November 8, 2002.65 In its brief, Westbound tion" when the defendant does not dispute ac- argued that the District Court committed re- tual copying.73 The effect of this command- versible error on two points. First, Westbound ment is that even the most quantitatively tri- argued that the District Court erroneously bur- fling or qualitatively transformative applications dened it, and not Defendant No Limit, with of digital sampling are each, absent appropri- establishing the substantial similarity element ate licenses, instances of sound recording copy- of infringement. Second, Westbound argued right infringement. 74 Also, the Sixth Circuit that the District Court's substantial similarity departed from the District Court's originality analysis was flawed because i compared the analysis and declared that the requirement tone and feeling of the edited "Get Off" sample "[was] met by the [mere] fixation of sounds in against its use in Clinton's original work instead the master recording... because only... the of considering whether the "Get Off" sample master recording will be exactly the same as used in "100 Miles" constituted a "substantial the copyrighted sound recorded." 75 portion" of Clinton's work.66 Westbound believed that "Get Off's" introductory three-note c. The Sixth Circuit's Jus- riff was a "signal moment" in the song and there- tification of "Get a Li- fore a legally significant portion "because it cense or Do Not [was] placed at the very beginning of the com- Sample" position and... [was] entirely unaccompa- The Sixth Circuit justified its landmark nied." 67 The Sixth Circuit's decision, filed on holding primarily through its interpretation of September 7, 2004, rejected these arguments; 17 U.S.C. §114(b) to prohibit any unauthorized instead, it trotted through copyright law with a sampling where "the actual sounds [in the origi- 68 different cavalry of analysis. nal] recording are rearranged, remixed, or otherwise altered in sequence or quality."76 In ad- 2, The Sixth Circuit Opinion dition, the following factors bolstered its reasoning: (1) sampling is never accidental; (2) a. The Day the District bright-line rules are easily enforced; and (3) the Court Opinion Died holding does not significantly stifle creativity In one swift missive, the Sixth Circuit because artists may negotiate appropriate li- dismissed both the result reached and the legal censes, or, in lieu of obtaining a license, inde- reasoning used in the District Court's opinion: pendently recreate the desired sample.77 The "[s]ince the district court decision... tracked the Sixth Circuit also explained why, in its view, analysis that is made if a musical composition substantial similarity and de minimis analysis copyright were at issue, we depart from that were unavailable to a defendant that did not analysis." 69 Digital sampling case law hereto- dispute actual copying. fore, from 1991's Grand Upright to the most Though the Sixth Circuit acknowledged recent 2003 case, Newton v. Diamond - cases it was not following any legal precedent, it ex- that involved "composition copyright infringe- plained that it also "did not pull this [holding] ment [but] not sound recording infringement," out of thin air."78 The Sixth Circuit cited six 7 0 played no role in the Sixth Circuit's opinion. different law journal articles, as well as other b. Hip-Hop [ping] Back to legal commentary, as secondary authority.79 This "Thou Shalt Not Steal" legal academia supported, or in part provided,

Summer 2005 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music the court's interpretation of 17 U.S.C. §114(b), "how much a digital sampler alters the actual and also bolstered its other justifications.8s The sounds or whether the ordinary lay observer "dead horse" legal authors in the digital sam- can or cannot recognize the song or the artist's pling debate were apparently not quite dead.s performance of it" is irrelevant to a sound recording infringement case where copying is not 8 6 i. Interp retation of challenged. §114(b) of the Copyright Act ii. The Other Justifica- The Sixth Circuit's analysis in Bridgeport tions Music "begins and largely ends" with its inter- The Sixth Circuit thought that the pre- pretation of §114(b), the statute defining the meditated nature of digital sampling also limited exclusive rights granted to a sound re- weighed against its permissibility.87 It pointed cording copyright holder.82 The relevant ex- out that a composer may perceive a melody in cerpt from §114(b) states: her head and may believe it is her own, when in fact it is another's work that the composer [T]he exclusive right to [create a deriva- no longer consciously recalls hearing.8 8 But this tive work based upon a copyrighted is never the case in digital sampling - it is al- sound recording] is limited to the right ways an intentional appropriation of another's to prepare a derivative work in which work.8 9 the actual sounds fixed in the sound re- Another factor the Sixth Circuit used cording are rearranged, remixed, or oth- to justify its bright-line rule was its "ease of en- erwise altered in sequence or quality. forcement." 90 As a practical consideration, it The exclusive rights [to prepare a de- worried about the "mental, musicological, and rivative work] in a sound recording do technological gymnastics" that would be nec- not extend to the making or duplica- essary were courts to adopt a de minimis or sub- tion of another sound recording that stantial similarity analysis.91 While conceding consists entirely of an independent fixa- that the District Court judge "did an excellent 83 tion of other sounds. job navigating these troubled waters," the Sixth Circuit thought that the Bridgeport Music liti- According to the BridgeportMusic court, gation, which as of the date of the decision con- the precise nature of digital sampling was to tained over 800 related cases "involving differ- "rearrange, remix, or otherwise alter in se- ent samples from different songs," would ben- quence or quality" the "actual sounds" in a re- efit from the judicial economy of a bright-line 92 cording; therefore, all songs containing samples rule. were derivative works and all unauthorized Finally, the Sixth Circuit justified its de- sampling was copyright infringement. 4 To be cision by pointing to the prevalent practice of clear, the Sixth Circuit stated that only "a sound licensing in the music industry, and proffered recording owner has the... right to "sample" that the "market" will keep licenses appropri- his own recording. "85 The consideration of ately priced because a sound recording copy- in a sound recording infringement suit, it is "the aural effect produced by the way the notes in the ["Get Off" sample] are played" that are the subject of the originality inquiry, not the collection of notes themselves.

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right holder "cannot exact a license fee greater were (1) a reinstatement of the District Court's 1 1 than what it would cost... to just duplicate the "originality" analysis; and (2) a comment to sample... in a new recording." 93 Further, its the District Court inferentially inviting it to con- 10 2 opinion endorsed the view that a cost-benefit sider a "fair use" defense on remand. analysis "generally indicate[d] that it is less ex- pensive for a sampler to purchase a license... rather than take his chances [in court]." 94 Due I11 A Survey and Analysis of Pub- to the availability of market-priced samples and lic and Academic Reactions to the prospect of independent mimicry, the Sixth Bridgeport Music Circuit believed its holding did not upset the balance between "protecting original works A. Introduction and stifling further creativity."95 Since the Bridgeport Music decision was published, commentary and criticism has iii. Why No Substantial erupted across the Internet, in the Similarity or De Minimis "blogosphere," and in other publications." 3 Analysis Unfortunately for the courts, the Internet and The "Get Off" sample was "back on the its blogosphere provide unregulated hunting hook," and no substantial similarity or de mini- grounds to flak unpopular decisions. Though mis defense could rescue it from the black-hole the Internet is a source to be wary of, it is no- of the Sixth Circuit's bright-line. The court ex- table that on January 12, 2005 the U.S. Supreme plained that the reason why no de minimis or Court cited its first blog in U.S. v. Booker.10 4 The substantial similarity analysis applied was, in following survey and analysis of the critique of addition to the dictates of §114(b), that "even the BridgeportMusic decision was driven, in part, when a small part of a sound recording is by this new cavalry of "dead horse" bloggers. sampled, the part taken is something of value.... In the days and months following the [and] [n]o further proof... is necessary than the decision, three main critiques emerged on the fact that the producer of the record or the artist Internet and in the press: (1) the Sixth Circuit's on the record intentionally sampled because it literal interpretation of §114(b) of the Copyright would (1) save costs, or (2) add something new Act to preclude substantial similarity or de mini- to the recording, or (3) both."96 A footnote in mis analysis was erroneous; (2) the Sixth Cir- the opinion further explained that digital sam- cuit, in a continuing tradition of judicial anath- pling allows recording artists to save money by ema, erroneously refused to consider or even not hiring musicians; that is, sampling allows mention "fair use" as a defense to NWA's sample "the musician [to be] replaced with himself."97 of "Get Off;" and (3) the Sixth Circuit's economic justifications for "Get a license or do not 3. The Decision and the sample" were based on faulty premises that Amended Opinion served to mask the stifling effect the holding 5 Based on the above, the Sixth Circuit has on sample-based musicians. 10 reversed the District Court's summary judgment grant to defendant No Limit. 98 In be- B. The Interpretation of §114(b) of mused resignation, it concluded its opinion by the Copyright Act to Preclude Sub- opining that there was no "Rosetta stone" for stantia- Similarity or De Minimis interpreting the Copyright Act, and that it was Analysis impossible to divine Congressional intent be- It is true that the "dead horse" authors cause the relevant legislative history predated of the digital sampling debate, at least those digital sampling.99 cited by the Sixth Circuit, endorsed the court's However, on December 20, 2004 the interpretation of §114(b). Six different law jour- Sixth Circuit, in addition to granting a rehear- nal articles, as well as other legal commentary, ing based upon the appeal of No Limit and an were cited by the court as secondary authority.16 amicus brief by the Recording Industry Asso- For instance, Susan Latham, author of an article ciation of America ("RIAA"), also amended analyzing Newton v. Diamond, offered that portions of its opinion.10 ' Two notable changes §114(b) "by its own terms preclude[d] the use

Summer 2005 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music of a substantial similarity test." Similarly, Al and Because the courts, as well as legal au- Bob Kohn, authors of "Kohn on Music Licens- thors, have repeatedly described de minimis use ing," a legal canon in the music industry, were as copying that "has occurred to such a trivial cited as rejecting "judicial [application]" of sub- extent as to fall below the quantitative thresh- stantial similarity and de minimis analysis be- old of substantial similarity,"113 the Sixth Cir- cause "it is believed.., that the courts should take cuit may have erroneously thought that de mini- what appears to be a rare opportunity to follow mis use was only material to the specific inquiry a [bright-line] rule specifically mandated by as to whether actual, as opposed to actionable, Congress [in §114(b)]."1 0 7 The Sixth Circuit evi- copying occurred. 1 4 In any event, its interpre- dently adopted this interpretation with little tation of §114(b) provides for arguably absurd explanation other than commenting that "[n]o consequences if its interpretation were to be further proof... is necessary than the fact that applied to the balance of the Copyright Act cov- the producer of the record or the artist on the ering derivative work infringement. record intentionally sampled because it would For example, what if the Sixth Circuit's (1) save costs, or (2) add something new to the "literal" interpretation were uniformly applied 10 8 recording, or (3) both." to all derivative work infringement claims, such However, as the District Court noted in as a digital sampling case involving only the its opinion, the de minimis principle guards music composition copyright?"5 §106(2) of the against "over-enforcement of copyright laws [that] Copyright Act grants to music composition may unjustifiably stifle creativity" (emphasis authors "the exclusive right to prepare derivate

"The Sixth Circuit declared: 'Get a license or do not sample:"

supplied).0 9 It is easy to forget that a de minimis works," and it defines a derivative work as "a use of a copyrighted work is generally under- [new] work... in which [the original] work [has stood as excusing infringement - and not as a been] recast, transformed or adapted."" 6 There defense to claim that no infringement oc- is no obvious difference in meaning between curred.110 Further, as noted by Kohn & Kohn, §114(b)'s prohibition against "rearranging" and de minimis analysis is "judicially applied"; mean- "remixing" a sound recording and §106(2)'s ing that the fact that the statutory text of §114(b) prohibition against "recasting, transforming, or is silent to its availability does not necessarily adapting" a musical composition.1 1 7 It has been preclude its judicial application.""' Moreover, argued that "under the Sixth Circuit's approach, the Sixth Circuit itself, in Gordon v. Nextel Com- any adaptation of [the musical composition] munications, recited the following mantra re- would infringe, no matter how little was actu- garding de minimis infringement: "To establish ally copied."" 8 In the digital sampling cases that a copyright infringement is de minimis, the heretofore, however, which involved only the alleged infringer must establish that the copy- composition copyright, the courts routinely ing of the protected material is so trivial as to applied substantial similarity and de minimis fall below the threshold of substantial similar- tests as threshold inquiries when evaluating ity, which is always an element of actionable copyright infringement. copying" (emphasis supplied). 112 The Sixth Circuit also appears to be con-

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sumed by the fact that all sampling is "inten- Use Analysis tional" and creates more culpability than, say, The Sixth Circuit's analysis in Bridgeport the composer who unwittingly appropriates Music did not reach "fair use."123 Many com- another's melody as her own.119 But the de mini- mentators feared that, with respect to §114(b), mis principle, again, is an excuse to infringe- the court had interpreted "fair use" right out of 124 ment, and it is not facially clear why the "in- the Copyright Act. But in its amended opin- tentions" of the infringer should play into the ion, the Sixth Circuit blindsided this impres- analysis. As one "blogger" explained, the de sion by hinting to the District Court that it was minimis defense does not excuse infringement free to entertain "fair use" as a defense on re- 125 "because [it is] likely to be accidental, but [in- mand. The following is a designedly attenu- stead] because it simply isn't worth the trouble ated presentation of traditional "fair use" analy- ...to spend years in litigation over a three-note sis. guitar arpeggio." 12 De minimis analysis ought Unlike a de minimis inquiry, the Copy- to be an inquiry into whether judicial discretion right Act does explicitly provide for "fair use" is appropriate to give effect the ultimate charge as a defense to excuse copyright infringe- of the Copyright Act; that is, to foster creativity ment.126 §107 of the Copyright Act provides:

"The "dead horse" legal authors in the digital sampling debate were apparently not quite dead:'

while assuring authors' commercial success. The Sixth Circuit ostensibly interpreted its discretion [T]he fair use of a copyrighted work... right out of the Copyright Act. for purposes such as criticism, comment, Finally, despite the apparent consensus news reporting, teaching ..., scholar- amongst the "dead horse" authors cited in the ship, or research, is not an infringement Bridgeport Music opinion, another objection of copyright. In determining ... fair use claims that the Sixth Circuit's interpretation of the factors to be considered shall include 121 §114(b) will create defacto retroactive liability. (1) the purpose and character of the use The argument, as articulated by the RIAA in its ... (2) the nature of the copyrighted amicus brief, is that "[f]or more than a decade, work; (3) the amount and substantial- the music industry has conformed its conduct ity of the portion used in relation to the to the [perceived] existing rules - obtaining li- copyrighted work as a whole; and (4) censes for sampling when appropriate, and re- the effect of the use upon the potential lying on de minimis and fair use principles if market for or value of the copyrighted and where [appropriate]." 122 According to the work. 127 Sixth Circuit, then, an entire industry miscon- strued §114(b) for over a decade. The "dead It may be immediately objected that horse" authors cited by the court did not re- digital sampling does not neatly fall into a one flect the conventional wisdom in the music in- of §107's listed categories, such as "criticism" or dustry. "research." However, the text of §107 speaks only illustratively when it describes "purposes C. The Absence of Traditional Fair such as criticism, comment... scholarship, or

Summer 2005 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music research," and it was never intended to exhaust ment."135 Or as Judge Learned Hand wrote in the potential categories of "fair use" purposes. 28 West PublishingCo. v. Edward Thompson Co., "fair Legislative intent is clear, as the 1976 House use" is really just a question of whether "copy- 136 Report to §107 explains, "there is no [intention] ing... has been done to an unfair extent." to freeze the doctrine in the statute.... [T]he courts must be free to adapt the doctrine to D. Economic Un-Justifications and 29 particular situations on a case-by-case basis." Starving Artists Notwithstanding, in judicial practice there is Mike "D," a member of The Beastie anathema towards fair use inquiry in digital Boys, a Hip-Hop phenomenon that has made a sampling infringement cases. 3 ° In practice, "career... of transforming the sounds of the past entertainment attorneys caution clients "that for into.., new music,"137 recently described his a sample to qualify as "fair use," it must be used group's sample-clearing process: for purposes such as parody, criticism, teaching, news reporting, research or some other It's very tedious. We have to sit there non-profit use." and basically break out every single com- Many applications of digital sampling ponent of every track that we do and militate towards a finding of "fair use." For in- make a list of the sources for everything. stance, samples (1) whose "nature" was highly We go through every blip of sound and transformative of the original work; (2) where decide what's significant enough that we the "amount and substantiality of the portion need to contact the owner. From there, used" constituted de minimis use; and (3) where it's a whole bunch of lawyer craziness. 38 the "effect of the use" had little bearing on the market or value of the original or derivative The above quote was taken from an interview work.'13 It is designedly arguable that NWA's in a magazine that reported on the Bridgeport 139 sample of "Get Off" was transformative, -de Music decision and the change in law. Will minimis, and also had little effect on the market someone please tell Mike "D" that now "every- for the original recording, especially given that thing" is significant enough to require a license? "not even one familiar with the works of George The Sixth Circuit believes that "the 32 Clinton" would recognize the appropriation. market will control the license price [of a If a traditional "fair use" defense is entertained sample] and keep it within bounds." 14° But on remand, the following two considerations what is "out-of-bounds" in the context of copy- are likely paramount: (1) to what extent does right infringement? The fact that licenses are the commercial purpose of "100 Miles" weigh "market-priced" does not demonstrate whether against a finding of fair use; and (2), does the the appropriate balance between "fostering cre- ability of the "Get Off" sample to be ultimately ativity and assuring author[s]... commercial recognized when told of its source destroy the success" has been tilted. 141 The reality is that "amount and substantially of the portion [cop- unless you are a major Hip-Hop act with deep 133 ied]" prong of the fair use defense? pockets for licenses and attorney fees, the Traditional "fair use" analysis is apt to Bridgeport Music holding effectively bans you ramble along in legal writings, often balloon- from practicing the Hip-Hop art form. Even ing its content with well-founded observations. before the Bridgeport Music decision, critics of The four-prong balancing test set forth in the current licensing practices had complained of text of §107 is a simple analytical framework - "barrier[s] to entry for independent or devel- 34 1 42 but there is nothing easy in its application. oping acts." There is much to recommend in an analysis that For instance, a sound recording license is not dogmatically beholden to the categories for a three-second sample will cost in the neigh- and factors enumerated in §107. In Michael J. borhood of $1500, a "looped" three-second Madison's comprehensive review of "fair use," sample $5000, and any sample over four seconds he wrote "the question ought ...to be... whether could "run into the tens of thousands of dol- the [sampler's] efforts [were] more socially valu- lars."143 A frugal Hip-Hop act can spend $60,000 able than the outcome produced by allowing the on sampling fees to record an album.144 But for copyright holder to enjoin the use or obtain pay- acts like the Beastie Boys, who in the past have

5 19 Vanderbilt Journal of Entertainment Law & Practice MUSIC

recorded albums where literally hundreds of clear judicial guidelines "an industry custom has disparate snippets of music and sounds are in- arisen whereby users pay for licenses even terwoven - there is almost no ceiling to the po- where they do not need them."'51 What con- 145 tential expense. stituent in the music industry has incentive to The Sixth Circuit also ignored in its eco- roll the judicial dice, especially where the de nomic appraisal what it conceded later in its facto rules in the Hip-Hop industry have ush- opinion: "Today's sampler is tomorrow's ered the musical genre into mainstream ubiq- samplee.... [and] the incidence of 'live and let uity? live' has been relatively high." 146 If it is true that the Hip-Hop industry has engaged in reci- procity in cases involving de minimis or other IV. Electronica, and the Rest of the qualitatively insignificant samples, and in fact History of Digital Sampling has thrived under what the Recording Indus- try Association of America ("RIAA") perceived A. What is Electronica? as "existing rules," 47 then on what basis of As a musical style, Electronica 152 does copyright law can the result in Bridgeport Mu- not "employ traditional approaches to compo- sic be justified? This argument does not chal- sition such as reliance on the playing of notes, lenge the Sixth Circuit's correct assertions that the use of overt tonality and melody, or the gen- many applications of digital sampling do "re- eration of accompaniment for vocals." 153 An place the musician with himself" and reduce accurate recipe for an Electronica composition the need for studio musicians. Instead, the ar- is: (1) assault the listeners with tachycardia pro- gument is that, on balance, fostering creativity ducing tempos of 140 to 160 BPM (beats per by allowing de minimis sampling has more net minute); (2) rampage their eardrums with social utility than protecting the speculative thumping drum kicks and enveloping bass economic interests of the original recording art- lines; (3) challenge their sonic sanity with in- ists'. In 1996, entertainment attorney, Robert dustrial sounding, computer authored "notes;" M. Syzmanski, prophetically wrote that "[i]t is and (4) play any discernible "notes" at "physi- doubtful that anyone has ever picked up a gui- cally impossible speeds or [in impossible] note tar in the hope that one day he will be able [to] combinations." 54 The sonic anarchy and hy- 48 license a two-second sample." peractive cacophony of the genre has led some The Sixth Circuit claimed that it ap- to label Electronica as the only thing "worse 1 49 "155 peared "cheaper to license than to litigate." than rap. If this is true, it is conceivably because record companies do not want to volunteer as the wa- B. How Does Digital Sampling Fit tershed judicial guinea pig. Before Bridgeport In? Music, no court had "comprehensively tackled Music composed in the Electronica style the complex legal issues involved in sam- described often achieves "the deconstructive pling." 50 Some argue that due to the lack of manipulation of sound."'56 The digital sampler "Because of the availability of market- priced samples and the prospect of j independent mimicry, the Sixth Circuit believed its holding did not upset the balance between 'protecting original J works and stifling further creativity'."

Summer 2005 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music

is a prevalent tool towards achieving this cuit when deciding BridgeportMusic. 61 3 This sec- "deconstruction" and "abuse;" in fact, stand- tion of the Note asserts two penultimate argu- ing alone it is sufficient. For instance, a musi- ments: (1) the constituent elements of sound cian can use a digital sampler to copy a two (termed "sonic" ideas) are embedded within a second blip of music, and without introducing given sound recording's "sonic" expression; and any other sounds into the production, produce (2) that by "slicing, layering, looping, stretch- a composition complete with rhythm, melody, ing, filtering, smacking, flipping or rubbing" and harmony.15 7 Electronica "Noise" artists such down the waveforms in a sample, an Electronica as Masami Akita (known as "Merzbow") rely artist can successfully, even if unwittingly, de- on "hellish[ly] processed" samples from an stroy any protectable "sonic" expression con- unending variety of sources to engage in their tained in an unedited sample. Finally, this sec- sonic trench warfare. The unanticipated results tion argues that when the "sonic" expression demonstrate to listeners the "range of possibili- in the unedited sample is entirely absent in its ties in a given [sonic] code."158 edited "final version," the sampling should be The most apt examples of excused as "fair use" reverse engineering be- deconstructive digital sampling, however, were cause the new expression in the "final version" recently created in specific protest of the Bridge- was engineered by uncopyrightable "sonic" port Music decision. An organization called ideas. "Downhill Battle" began an online protest and participants of the protest were required to cre- B. Hey! What's the Idea? §102(b) ate a 30 second composition using only a digi- and Reverse Engineering as Fair tal sampler and the two-second sample of "Get Use Off."'59 A total of 177 entries were received, §102(b) of the Copyright Act demands each composed only through the manipulation that copyright protection extend only to origi- of the sonic waveforms in the sample; for in- nal expression and not "to any idea." 164 Not- stance, slicing, layering, looping, stretching, fil- withstanding, when an artist, in order to ap- tering, smacking, flipping or rubbing down the propriate the "ideas" of a work, needs to first waveforms in the sample.16 ° One contest entry make an infringing "intermediate" copy, the was a satirical Electronica version of the "Star- judiciary has enforced the spirit of §102(b) Spangled Banner."161 Were a listener not armed through the application of the reverse engineer- with the knowledge of the source of these alien ing branch of "fair use."' 65 Digital sampling, sounds, it would be impossible to recognize its when used as a technique to discover the hid- source. den galaxies of music embedded within recorded sound, makes a suitable candidate for 166 "fair use" reverse engineering analysis. V. The Musical Scales of Justice: In the seminal reverse engineering case, p102(b) and the Reverse Engineer- Sega Enters., Ltd. v. Accolade, Inc. ("Sega Enter- ing of Sonic Ideas as Fair Use prises"), the Ninth Circuit announced that "where [reverse engineering] is the only way to A. Introduction: Everything in gain access to the ideas and functional elements Between A Sample embodied in a [work] and where there is a le- One common thread to the panoply of gitimate reason for seeking such access, [reverse digital sampling scholarship is the almost engineering] is a fair use." 167 The "access" and chronic adherence to Hip-Hop as the contex- "reverse engineering" in Sega Enterprises took tual prism for the sampling debate. The the form of an intermediate infringing copy of "deconstructive" applications of digital sam- software code, held to be "fair use" because the pling, such as were discussed regarding intermediate copy was necessary to "disas- Electronica composition, have gone largely ig- semble" the code to excavate the "ideas" ulti- nored.162 As a result, the use of digital sampling mately used in the defendant's non-infringing 1 68 as a stepping stone to accomplish "the "final version." deconstructive manipulation of sound" may Applying this analytical mold to digital have been outside the purview of the Sixth Cir- sampling requires comparison of sampling's

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three discrete stages: (1) recording the "sonic" question their concepts beg regarding reverse numbers in the sample, (2) editing the sample engineering: If the "sonic" expression is re- with digital audio devices, and (3) playing back corded, can it subsequently be atomized and the modified sample. 169 The first stage (record- then repackaged (creating new expression) to ing the sonic numbers) is analogous to the "in- an extent where all meaningful "sonic" relation- 7 6 termediate copying" of the software code, the ships in the original recording are destroyed? second stage (editing the digital sample) is akin to "disassembling" the code, and the third stage 2. The Downhill Battle En- (playback of the edited sample) is similar to the trants as "Fair Use" Reverse non-infringing "final version" of the code Engineering implemented in the new software. The 177 entries in the "Downhill Battle" For the analogy between computer code protest are put forth as examples of "fair use" and digital sampling to hold true, and there- reverse engineering. The Downhill Battle sam- fore, for reverse engineering "fair use" to be a plers, by "disassembling" the "Get Off" sample valid defense in digital sampling cases, then, through "slicing, layering, looping, stretching, following the Sega Enterprises framework: (a) filtering, smacking, flipping [and] rubbing" only the "sonic" ideas in an unedited digital down the waveforms in the sample, discovered sample can remain in the edited "final version;" never heard before or even imaginable sounds and (b) the sampling artist cannot reasonably buried inside the original recording. achieve the appropriation through another "Work[ing] with sonic waveforms at their most route. 7' As a threshold matter, a definition and fundamental level," the entries made audible a discussion of "sonic" ideas is necessary. small sampling of the "range of possibilities in a given [sonic] code." 177 The unedited three- 1. What are Sonic Ideas and note arpeggio sampled in "Get Off" and the how are they Different from Downhill Battle entries (such as the "Star- Musical Ideas? Spangled Banner" reincarnation) share no hu- The courts have not had great success manly cognizable expression, either musically in defining musical "ideas" or determining or sonically. Even if the discussion of sonic ideas whether more than "ideas" have been copied and expression is vague or not accepted, it is in a composition infringement case.171 All that inarguable that the musical qualities of melody, is clear is that certain combinations of notes on harmony and tone been edited out of existence a "lead sheet" will cross the threshold from in the Downhill Battle entries. musical "idea" to protectable "expression." 172 The second prong of a successful "fair The ambiguity is not surprising, however, be- use" reverse engineering defense, that the in- cause the task of differentiating between a fringer could not reasonably achieve the appro- work's "expression" and its embedded "ideas" priation through another route, is also satisfied is a boundary that "[n]obody has ever been able with respect to the applications of digital sam- to fix," regardless of whether the subject mat- pling used by artists such as Merzbow and the ter is literary, musical, or visual.' 7' Nonethe- Downhill Battle participants. The sampler can- less, when a sound recording of a musical com- not know what new expression will be produced position is the subject of the idea/expression before he edits the sample. The hidden galax- inquiry, and the discussion of "sonic" ideas and ies of sound within a sample exist in an experi- "sonic" expression is introduced, the level of ential vacuum where the results of the hellish abstraction is (literally) extrapolated. sound deconstruction are unknowable until This Note offers that "sonic" ideas are playing back the edited sounds. The judicially fairly described as "the constituent elements of suggested alternative route to sampling, the "in- 178 sound; that is, the raw matter of waveforms and dependent recreation of the desired sample," electrical currents." 74 "Sonic" expression, in is therefore incompatible with the realities of turn, can be described as "the product of these "hellish[ly] processed" 79 samples: the sampling "physics" of sound when oriented and actuated artist does not know beforehand what the "de- by a performing musician." 175 The precise defi- sired sample" will sound like in its "final ver- nitions pale in importance compared to the sion."

Summer 2005 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music

Miles," and so both sonic and compositional expression remain in the "final version" of the VT. Conclusion: If the Sample is Ed- sample. ited Beyond All Recognition, Sound This proposal is respectful of both the Recording Infringement Should not Sixth Circuit's statutory interpretation of Attach §114(b) and §102(b)'s superseding statutory "What constituent in the music industry has incentive to roll the judicial dice, especially where the de facto rules in the Hip-Hop industry have ushered the musical genre into mainstream ubiquity?"

Attacks against the Sixth Circuit's statu- demand that "ideas" are not copyrightable. It tory interpretation of §114(b) or its economic is a compromise between Bridgeport Music's justifications for it bright-line rule are not espe- standard of absolute liability and the lower cially promising in the context of the Bridge- court's (traditional) substantial similarity and de port Music action and its judicial resolution. It minimis inquiries. An objection, however, is that is also unknown how the disputed "Get Off" this proposal is indistinguishable in judicial sample in Bridgeport Music would perform if application from an absolute liability standard. ultimately subjected to traditional "fair use" After all, since all "audibly recognizable" analysis by the District Court on remand. samples infringe under this proposal, and a Instead, this Note proposes that the sample's source cannot be identified unless "au- Sixth Circuit's "Get a license or do not sample" dibly recognizable," then the results of Bridge- commandment can be superseded by §102(b)'s port Music's standard and this Note's proposal statutory demand that "ideas" are never copy- are seemingly identical. However, this objec- rightable. The "fair use" reverse engineering tion ignores the reality that under the Bridge- defense under §107 can be the means to give port Music rule, mere knowledge of a sample's effect to §102(b)'s spirit. As an alternative to origin can establish liability. This Note's pro- tackling the judicially unmanageable vagaries posal, however, removes the prospect of of "sonic" ideas and expression, however, this "knowledge" as sufficient to establish liability Note further proposes that the reverse engineer- creativity. Therefore, it fosters creativity in two ing test can be administered through a simple ways: (1) Electronica artists do not need to seal inquiry: whether the appropriation from the their recording studios from persons who might unedited sample is audibly recognizable in its inform on their sampling habits; and (2) "final version," even after the listener is told of Electronica artists will never fear engaging in its source and location in the allegedly infring- frank discussions of their sampling sources and ing work. If the final appropriation is not "au- editing techniques. dibly recognizable," then it is "fair use" reverse engineering, because no humanly cognizable appropriation has occurred. By this measure, the disputed sample in BridgeportMusic is not a ENDNOTES valid instance of "fair use" reverse engineering. If one is told the source of the "Get Off" sample, 'J.D. candidate, May 2006, Vanderbilt Univer- she can recognize the appropriation in "100 sity Law School. I would like to thank Profes-

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sor Lawrence Helfer not only for his advice in album, "I Need a Haircut," which contained the developing the topic for this Note, but also to song "Alone Again." This track digitally his help in procuring resources. I would also sampled Gilbert O'Sullivan's recording of 'Alone like to thank the editorial board of the Journal Again (Naturally)." The appropriation con- of Entertainment Law & Practice for their faith sisted of 'taking' three words from O'Sullivan's and encouragement; moreover, special thanks recording, and also a portion of the background are due to the journal's Senior Notes Editor, music. Without entertaining defenses of fair use, Robert Leclerc, for his avid guidance and mea- substantial similarity or de minimis use, or even sured patience in overseeing the progress of this distinguishing between compositional and Note. sound recording infringement, the judge in Grand Upright granted plaintiff's preliminary Matthew Africa, The Misuse of Licensing Evi- injunction to halt further sale of "I Need a Hair- dence in Fair Use Analysis: New Technologies, New cut," and referred the case to a U.S. attorney's Markets, and the Courts, 88 CAL. L. REV. 1145, office for potential criminal prosecution. Id. 1173 n.121 (2000). 11 17 U.S.C. § 102(b) (2005). 2 See also Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 400-01 (6th Cir. 2004), 12 Bridgeport Music, Inc., 383 F.3d at 398. amended, rehearing granted, 2004 U.S. App. LEXIS 26877 (6th Cir. 2004). See generally J. 13 Matthew G. Passmore, Note, A Brief Return Michael Keyes, Musical Musings: The Case for to the Digital Sampling Debate, 20 HASTINGS Rethinking Music Copyright Protection, 10 MICH. CoMM. & ENT. L.J. 833, 837 (1998). TELECOMM. & TECH. L. REV. 407 (2004); Brandon G. Williams, Note, James Brown v. In-Frin-Jr: 14 TODD SOUVIGNIER, LOOPS AND GROOVES: THE How Moral Rights can Steal the Groove, 17 ARIz. MUSICIAN'S GUIDE TO GROOVE MACHINES AND Loop J. INT'L & Com. L. 651 (2000). SEQUENCERS 18 (2003).

3 See Bridgeport Music, Inc., 383 F.3d at 400-01. 15 Id. at 18-19.

4 Id. at 401. 16 Id. at 19.

5 Congress, for its part, missed an opportunity 17 Id. Two elements determine the quality of a to squarely address digital sampling when it sample: the "sample rate" and its "bit depth." drafted the Digital Millennium Copyright Act Sample rate refers to the number of times per of 1998. See Larry Waks & Sheri Hunter, Digi- second that the sound's waveform is measured, tal Sampling: The Song Remains the Same, at and bit depth refers to the number of different http://images.jw.com/com/publications/ voltage levels the sampling system can detect. 337.pdf (last visited Apr. 8, 2005). The better the sample rate and bit depth, the more accurate the recording. See id. at 18-19. 6 AL KOHN & BOB KOHN, KOHN ON Music LICENSING 1486 (3d ed. 2002). 18 See Greg Holmes, The Fairlight CMI, The Holmes Page, at http://www.ghservices.com/ 7 Bridgeport Music, Inc., 383 F.3d at 398. gregh/fairligh/ (last modified Jan. 15, 2005).

8 17 U.S.C. § 114(b) (2005). 19 Id.The Fairlight CMI had a sample rate of 24 kHz (24,000 measurements per second) and 9 Bridgeport Music, Inc., 383 F.3d at 395. used two 8-bit depth processors (meaning each processor could measure 256 different voltage 10780 F. Supp. 182, 183 (S.D.N.Y. 1991). This first levels). In contrast, the present standards for digital sampling opinion began with the Bibli- DVD-audio are 96 kHz sample rates (96,000 cal admonition, "Thou shalt not steal." The measurements per second) and 24-bit depth record label of rapper Biz Markie released his processing (16.8 million voltage levels). How-

Summer 2005 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music ever, the human ear cannot distinguish sample Does Looping Music Samples Defeat the De Mini- rate greater than 24 kHz; in addition, the ana- mis Defense?, 1 J. HIGH TECH. L. 179, 180 n.9 log circuitry typically used in DAC converters (2002). generally cannot accomdate greater than 17-19 bit sound. See Digital Audio Tutorial: Misinfor- 28 Susan J. Latham, Newton v. Diamond: Mea- mation, at http://www. musiq.com/recording/ suring the Legitimacy of Unauthorized Composi- digaudio/intro2.html (last visited Apr. 8, 2005); tional Sampling-A Clue Illuminated and Ob- Digital Audio Tutorial:Bit Rates and File Formats, scured, 26 HASTINGS COMM. & ENT. L.J. 119, 122- at http://www.musiq.com/recording/digaudio/ 23 (2003). bitrates.html (last visited Apr. 8, 2005) (for a basic introduction to digital audio). 29 BRUCE GERRISH, REMIX: THE ELECTRONIC MUSIC EXPLOSION 13 (2001). For a lyrical history of Hip- 20 SOUVIGNIER, supra note 14, at 32-33. Hop in the South Bronx, see BOOGIE DowN PRO- DUCTIONS, South Bronx, on CRIMINAL MINDED (B Boy 21 DIGITAL HOME RECORDING 10 (Carolyn Keating Records 1987) ed., 1998). Now way back in the days when hip-hop began, with CoQue, LaRock, Kool Herc, and 22 Id. at 10-11. then Bam..... There's got to be a better way to hear our music every day... Beat boys getting 23 Id. blown away but coming outside anyway. They tried again outside in Cedar Park, power from a 24 Id. at 10. See generally Kenneth M. street light made the place dark. But yo, they Achenbach, Comment, Grey Area: How Recent didn't care, they turned it out, I know a few un- Developments in Digital Music Production Have derstand what I'm talkin about... Remember Necessitated the Reexamination of Compulsory Bronx River rollin thick With Kool, DJ Red Alert Licensing for Sample-Based Works, 6 N.C. J.L. & and Chuck Chillout on the mix... When Afrika TECH. 187, 202 (2004). Islam was rockin the jams and on the other side Despite the fact that looping has existed of town was a kid named Flash. Patterson and for years, modem software samplers allow this Millbrook projects, Casanova all over, ya method to be pushed to new levels. Many couldn't stop it: The Nine Lives Crew, the Cy- producers not only use looped samples in the press Boys: The real Rock Steady taking out traditional manner but also cut out smaller and these toys. As odd as it looked, as wild as it smaller snippets of sound, essentially seemed, I didn't hear a peep from a place called deconstructing a recording to a catalogue of Queens. It was seventy-six, to 1980, the dreads source sounds. A producer can then re-se- in Brooklyn was crazy. You couldn't bring out quence these sounds in an entirely novel key your set with no hip-hop because the pistols or tempo. Producers are able to digitally im- would go ... port the sound of a kick drum or guitar chord, Id. recorded perhaps half a century ago, in a composition similar to the way classical composers 30 See GERRISH, supra note 29, at 13. use a particular section of the orchestra, playing a particular note. 31 GERRISH, supra note 29. For an explanation of Id. common dee-jay techniques, see Zivco Atanas Popov, Impress the Crowd with these DJ Tech- 25 Robert M. Syzmanski, Audio Pastiche: Digi- niques, at http://www.internetdj.com/ tal Sampling, Intermediate Copying, Fair Use, 3 article.php?storyid=518 (Dec. 31, 2004). UCLA ENT. L. REV. 271, 272-76 (1996). 32 Latham, supra note 28, at 123. 26 See http://www.loopwise.com/ musicsoftware.html (last visited Apr. 8, 2005). 33 Henry Self, Digital Sampling: A Cultural Per- spective, 9 UCLA ENT. L. REV. 347, 350 (2002). 27 Stephen R. Wilson, Music Sampling Lawsuits:

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34Nolan Strong, Ruling on Sampling Could have TIMEs, Dec. 2004, at 26. an Effect on Hip-Hop, at http:// www.allhiphop.com/hiphopnews/?ID=3483 43 Brief of Appellee No Limit Films LLC at 9- (Sept. 8, 2004). See generally Roxana Badin, 10, Bridgeport Music, Inc. v. Dimension Films, Comment, An Appropriate(d) Place in Transfor- No. 02-6521, 2004 U.S. App. LEXIS 26877 (6th mative Value: Appropriation Art's Exclusion from Cir. Dec. 20, 2004). Campbell v. Acuff-Rose Music, Inc., 60 BROOK. L. REV. 1653 (1995); Self, supra note 33. 44 Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 838 (M.D. Tenn 2002), 35 Strong, supra note 34. See generally Henry aff'd in part, rev'd in part, remanded, 383 F.3d Self, Digital Sampling: A Cultural Perspective, 9 390 (6th Cir. 2004), amended, rehearing granted, UCLA ENT. L. REV. 347 (2002). 2004 U.S. App. LEXIS 26877 (6th Cir. 2004).

36 Marjorie Hein, Trashing the Copyright Bal- 45 Id. ance, The Free Expression Policy Project, at http://www. fepproject.org/commentaries/ 46 Id. at 839. bridgeport.html (last visited Apr. 8, 2005). 47 Id. at 841. 37 See Thomas Goetz, Sample the Future, WIRED MAGAZINE, November 2004, at 180. See gener- 48 Id. ally "Some Rights Reserved": Building a Layer of Reasonable Copyright, at http:// 49 Id. www.creativecommons.org/ about/history (creativecommons.org is a prominent website 50 17 U.S.C. § 102(a) (2005). started by Stanford Law professor Lawrence Lessig whose mission is to retrain copyright into 51 Bridgeport Music, Inc., 230 F. Supp. 2d at 830. a more friendly, flexible, and democratic form) (last visited Apr. 8, 2005). 52 Id. at 839. Had the copyright in the music composition been at issue, the "collection of 38 Strong, supra note 34 (George Clinton ex- notes" would have been the subject of an origi- presses sympathy for struggling rap artists, pre- nality claim. See Newton v. Diamond, 349 F.3d sents his view of digital sampling as an impor- 591, 596 (9th Cir. 2003). tant cultural communication device, and describes his licensing fee structure which allow 53 Id. artists to freely sample his music up to the point where the new work becomes commercially 54 See generally Feist Publications, Inc. v. Rural successful). Telephone Service Co., 499 U.S. 340 (1991).

31 Michael W. Miller, Creativity Furor: High-Tech 55 Congress has the responsibility to develop Alteration of Sights and Sounds Divides the Art laws to "[secure] for limited times" the rights World, WALL ST. J., Sept. 1, 1987. authors have in their works. U.S. CONST., art. I, § 8, cl. 8. This charge requires Congress to strike 40 See 17 U.S.C. §§ 114-115 (2005). the proper balance between fostering creativity and assuring authors benefit from the com- The procedural history of this lawsuit is cored mercial success of their works. Warner Bros., down for clarity and readability. See Brief of Inc. v. American Broadcasting Cos., 720 F.2d Plaintiffs-Appellants at 2, Bridgeport Music, Inc. 231, 240 (2d Cir. 1983). The current codification v. Dimension Films, No. 02-6521, 2004 U.S. App. of this delicate and probably impossible task is LEXIS 26877 (6th Cir. Dec. 20, 2004). the Copyright Act.

42 Steve Seidenberg, George Clinton's Record 56 See Bridgeport Music, Inc., 230 F. Supp. 2d at Label Takes on Music Samplers, CORPORAT LEGAL 840. Copyright ownership and actual copying

Summer 2005 5Lb The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music were not contested for purposes of this motion. Music. BridgeportMusic, Inc. v. Dimension Films, For a representative case discussing the substan- No. 02-6521, 2004 U.S. App. LEXIS 26877, at *2- tial similarity requirement, see, e.g., M.H. Segan 3 (6th Cir. 2004), amending and grantingrehearing Ltd. v. Hasbro, Inc., 924 F. Supp. 512, 518 of 383 F.3d 390 (6th Cir. 2004). See supra note 10. (S.D.N.Y. 1996). 71 Bridgeport Music, Inc., 383 F.3d at 396 n.4. -7 See generally Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997). 72 It is unknown what analysis would apply if actual copying was disputed. Id. at 398. 58 Id. 73 Id. at 399. 59 Bridgeport Music, Inc., 230 F. Supp. 2d at 840. There is a conclave of tests that courts' use to 74 Many blogosphere commentators inter- evaluate substantial similarity; for instance, the preted the Sixth Circuit's original opinion to District Court in BridgeportMusic applied both eliminate "fair use" as a viable defense; how- the "quantitative/qualitative" and "fragmented ever, in its amended opinion the Sixth Circuit literal similarity" tests. See id. at 839-43. invited the district court to entertain a "fair use" defense on remand. BridgeportMusic, Inc., 2004 60 The discussion of the District Court's appli- U.S. App. LEXIS 26877, at *5. cation of the quantitative/qualitative and fragmented literal similarity approaches to substan- 7'Bridgeport Music, Inc., 383 F.3d at 396. The tial similarity are omitted as beyond the scope Sixth Circuit ultimately redacted this portion of this Note. Id. at 842. of the opinion and replaced the text with "We agree with the district court;s analysis on the 61 Id. at 841. question of originality." Bridgeport Music, Inc., 2004 U.S. App. LEXIS 26877, at *2. 62 Id. at 841-42.

76 17 U.S.C. § 114(b) (2005). 63 Id. at 842. I Bridgeport Music, Inc., 383 F.3d at 397-98. 64 Id. at 842-43. 78 Id. at 400-02 (the court referenced cases "fre- 65 Brief of Plaintiffs-Appellants at 1, Bridgeport quently cited" in the digital sampling debates Music, Inc. v. Dimension Films, 2004 U.S. App. but determined them inapplicable because they th LEXIS 26877 (6 Cir. 2004) (02-6521). generally involved disputes over the composition copyright and not the sound recording 66 Id. at *26-27. copyright).

67 Id. at *15. 71 Id. at nn.6, 8-12, 15.

68 See generally Bridgeport Music, Inc. v. Dimen- 80 Id. at 399. sion Films, 383 F.3d 390 (6th Cir. 2004), amended, rehearing granted, 2004 U.S. App. LEXIS 26877 "I See supra text accompanying note 1. (6th Cir. 2004). 82 Bridgeport Music, Inc., 383 F.3d at 397. 69 Id. at 396. 8 3 Copyright Act of 1976, 17 U.S.C. § 114(b) (2005). 70 Id. at 401, n.13. In the Sixth Circuit's amended opinion, it made mention of Grand Upright as 84 Bridgeport Music, Inc., 383 F.3d at 398-99. well as United States v. Taxe, 540 F.2d 961 (9th Cir. 1976), but distinguished these opinions as 85 Id. at 398. not squarely addressing the issues in Bridgeport

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86 Id. at 398 n.8 (citing Latham, supra note 28). online journals that exist on the Internet.

87 See id. at 399. 104 United States v. Booker, 125 S. Ct. 738, 775 n.4 (2005). 88The most famous case of this nature is ABKCO Music, Inc. v. Harrisongs,Ltd., 722 F.2d 988 (2d 105 See supra text accompanying notes 76-81. Cir. 1983) in which former Beatle George Harrison was sued for copyright infringement 106 Bridgeport Music, Inc. v. Dimension Films, of the Chiffon's "He's So Fine." The composi- 383 F. 3d 390, 398-401 nn.6, 8-12, 15 (6th Cir. tional infringement suit was successful: accord- 2004), amended, rehearing granted, 2004 U.S. ing to the court Harrison had subconsciously App. LEXIS 26877 (6th Cir. 2004). ripped off the Chiffon's tune in his work, "My Sweet Lord." Id. 107 Id. at 400 n.14 (citing KOHN & KOHN, supra note 6, at 1486-87). 89 Bridgeport Music, Inc., 383 F.3d at 399. 108Id. at 399. 90 Id. 109 Id. 91 Id. 110 See supra text accompanying note 59. 92 Id. 1 KOHN & KOHN, supra note 6, at 1487. 93 Id. 112 Gordon v. Nextel Communications, 345 F.3d 94 Id. at 400 n.12 (citing Stephen R. Wilson, 922, 924 (4th Cir. 2003)(borrowing language Music Sampling Lawsuits: Does Looping Music from the copyright staple Ringgold v. Black En- Samples Defeat the De Minimis Defense?, 1 J. tertainment Television, Inc., 126 F.3d 70, 74 (2d HIGH. TECH. L. 179 n.97 (2002)). Cir. 1997)(first and third emphasis added)).

15 Id. at 398. 113 Ringgold, 126 F.3d at 74.

96 Id. at 399. 114 Bridgeport Music, Inc., 383 F.3d at 399.

115 17 Id. at 399 n.11 (citing Christopher D. See, e.g., Newton v. Diamond, 349 F.3d 591, Abramson, Digital Sampling and the Recording 597 (9th Cir. 2003) (The Ninth Circuit held that Musician: A Proposal for Legislative Protection, the Beastie Boy's literal appropriation of 3 notes 74 N.Y.U. L. REV. 1660, 1668 (1999)). from flautist James Newton's "Choir" was de minimis because their derivative work "Pass the 98 Id. at 402. Mic" did not appropriate "the overall essence or structure" of the composition. The Beastie 99 Id. at 401-02. Boys had obtained a license in the sound recording of "Choir," and so the Ninth Circuit 10o See generally Bridgeport Music, Inc. v. Di- only considered whether the composition was mension Films, No. 02-6521, 2004 U.S. App. infringed - despite the literal copying involved.). LEXIS 26877 (6th Cir. 2004), amending and granting rehearingof 383 F.3d 390 (6th Cir. 2004). 116 Copyright Act of 1976, 17 U.S.C. §§ 101, 106(2) (2005). 101Id. at *2.

117 Id. at §§ 101, 106(2), 114(b). 102 Id. at *6. 118 Proskauer Rose, Client Alert: Sixth circuit 103 "Blogosphere" refers to the hemisphere on Eschews Use of Substantial Similarity, De Mini-

mis and OriginalityAnalyses in Copyright Infringe- 132 See Bridgeport Music, Inc. v. Dimension Films, ment Actions Involving Digital "Sampling" of Sound 383 F.3d 390, 395 (6th Cir. 2004), amended, rehear- Recordings, available at http:// ing granted,2004 U.S. App. LEXIS (6th Cir. 2004). www.proskauer.com/newspublications/ client alerts/content/2004_09_24 (Sept. 24, 133 The second consideration is discussed again 2004). in Section VII. See infra Part VII.

119 See supra text accompanying notes 87-99. 134 See supra text accompanying notes 127-129.

120 Joe Gratz, 6th Cir.: There's No Such Thing As 135 Michael J. Madison, A Pattern-OrientedAp- De Minimis Sampling, at http:// proach to Fair Use, 45 WM. & MARY L. REV. 1525, www.joegratz.net/archives/2004/09/08/6th-cir- 1556 (March 2004). theres-no-such-thing-as-ide-minimisi-sampling/ (Sept. 8, 2004). 136 West Publ'g Co. v. Edward Thompson Co., 169 F. 833, 861 (C.C.D.N.Y. 1909). 121 Gary Young, Law & Technology, BROWARD 137 Masters, WIRED MAGA- DALY BUSINESS REVIEW, Sept. 29, 2004, at 11. Eric Steuer, The Remix ZINE, Nov. 2003, at 185, 185-86. 122 Id. 138 Id. at 186. 123 See supra text accompanying notes 71-77. See generally Bridgeport Music, Inc. v. Dimen- 139 Id. at 188. sion Films, 383 F.3d 390 (6th Cir. 2004). 140 Bridgeport Music, Inc. v. Dimension Films, 124 See, e.g., Daniel Fisher, Name That Note, 383 F.3d 390, 398-99 (6th Cir. 2004), amended, re- FORBES, Oct. 18, 2004, at 54; Marjorie Heins, hearinggranted, 2004 U.S. App. LEXIS 62877 (6th Commentary: Trashing the Copyright Balance, Cir. 2004). Free Expression Policy Project, available at http://www.fepproject.org/ commentaries/ 141 Bridgeport Music, Inc. v. Dimension Films, bridgeport.html (last updated Mar. 30, 2005). 230 F. Supp. 2d 830, 840 (M.D. Tenn. 2002)(citing Warner Bros. Inc. v. American Broadcasting Cos., 125 Bridgeport Music, Inc. v. Dimension Films, 720 F.2d 231, 240 (2d Cir. 1983)), aff'd in part, rev'd No. 02-6521, 2004 U.S. App. LEXIS 26877, at in part, remanded, 383 F.3d 390 (6th Cir. 2004), *6 (6th Cir. 2004). amended, rehearinggranted, 2004 U.S. App. LEXIS 26877 (6th Cir. 2004). 126 17 U.S.C. § 107 (2005) (emphasis added). 142 The Sixth Circuit's proposed alternative, in- 127 Id. (emphasis added). dependent recreation of the desired sample, misappraises the artistic dynamics of Hip-Hop 128 H.R. REP. No. 94-1476, at 65-66 (1976). as culturally and sonically sample-based. See Joe Allen, Backspinning Signifying, to.the.quick, 129 Id. at 66. at http://to-the-quick.binghamton.edu/issue%202/sampling.html (last visited Apr. 8, 130 But see generally Campbell v. Acuff-Rose Mu- 2005). sic, Inc., 510 U.S. 569 (1994) (digital sampling infringement suit involving rap artists 2 Live I43Josh Norek, Comment, "You Can't Sing Crew and their raunchy parody of Roy Without the Bling": The Toll of Excessive Sample Orbinson's "Pretty Woman"). License Fees on Creativity in Hip-Hop Music and the Need For a Compulsory Sample License Sys- 131 See supra text accompanying notes 46-49, 60- tem, 11 U.C.L.A. ENT. L. REV. 83, 89 (2004). 64. 144 Id. at 89-90.

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(last visited Apr. 8, 2005). 145 For a list of the sampled songs in the Beastie Boy's breakthrough album "Paul's Boutique," 157 See Downhill Battle, 3 Notes and Runnin, at see Paul's Boutique Samples and References List, http://www.downhillbattle.org/3notes (last vis- at http://www.moire.com/beastieboys/samples/ ited Apr. 7, 2005). For a general review of tech- index.php (Mar. 15, 2005). niques, see also "Tweak", The Secrets of Great Sounding Samples, TweakHeadz Lab, at http:// 146 Bridgeport Music, Inc. v. Dimension Films, www.tweakheadz.com/Sampling-Tips.html 383 F.3d 390, 401 (6th Cir. 2004), amended, re- (last visited Apr. 8, 2005). hearing granted, 2004 U.S. App. LEXIS 62877 (6th Cir. 2004). 158 For a short pop journalism piece on Merzbow and "Noise Composition," see Ben 147 See supra text accompanying note 23. Tausig, The Taste of Noise, at http:// www.dustedmagazine.com/reviews/300 (last 148 Robert M. Syzmanski, Audio Pastiche: Digi- visited Apr. 8, 2005). tal Sampling, Intermediate Copying, Fair Use, 3 UCLA ENT. L. REV. 271, 326 n.241 (1996). 159 See Downhill Battle, supra note 158.

149 Bridgeport Music, Inc., 383 F.3d at 400. 160 See Downhill Battle, supra note 158.

"I Self, supra note 33, at 358. 161 Id.

151 Id. 162 For instance, it was not until a final draft of this Note that the author discovered Syzmanski, 152 The American Electronica revolution began supra note 25, an apparently lone endeavor into in Detroit in the early 1980's with the "Belleville the analysis of whether a sample, edited beyond Three," Juan Atkins, Derrick May, and Kevin recognition, should constitute copyright in- Saunderson, who helped birth the American fringement. incarnation of "Techno," a genre heavily influ- enced by the European group Kraftwerk (of 163 See Definition of Techno Music, wordiQ.com, "Popcorn" fame) and featuring heavy doses of at http://www.wordiq.com/definition/ electronic sounds. Today, the innumerable Technomusic (last visited Apr. 8, 2005). subgenres of Techno are cloaked together under the umbrella term "Electronica." Techno 164 17 U.S.C. § 102(b) (2005). Music, Wikipedia: The Free Encyclopedia, at http://en.wikipedia.org/ wiki/Technomusic 165 Madison, supra note 135, at 1656. (last modified Apr. 5, 2005). 166 For more background regarding "fair use", 153 Id. see text accompanying notes 127-137.

154 "Paperduck", Techno Music 4, at http:// 167 No. 92-15655, 1993 U.S. App. LEXIS 78, at *52- www.analogik.com/article-techno-4.asp (last 53 (9th Cir. 1993). visited Apr. 8, 2005). 168 Id. In the context of a computer software 155 Kyle West, Random Things that Piss Me Off!, infringement claim, "reverse engineering" is a Studio 54, at http://www.geocities.com/ technique where software code is disassembled westman420/ articlePissedOff.html (last visited "to see how it is constructed .... often Apr. 8, 2005). requir[ing] making at least one [intermediate] copy of the program." The permissibility of 156 The Real Facts Contribution Company, reverse engineering is dependent upon (1) the Techno (music), therfcc.org, at http:// purpose of the intermediate copying, and (2) www.therfcc.org/techno-music-329006.html the availability of other routes to accomplish

Summer 2005 530 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music that purpose. In Sega Enterprises the "final version" the disputed code copying was held to contain only the unprotectable elements of the original program; moreover, the "final version" itself did not infringe - only the intermediate copies infringed, and they were excused as "fair use" because of their legitimate purpose. Id.

169 See supra text accompanying notes 22-27.

170 See Alice J. Kim, Expert Testimony and Sub- stantial Similarity: Facing the Music in (Music) Copyright Infringement Cases, 19 COLUM.-VLA J.L. & ARTS 109, 118 (1994 / 1995); supra text accompanying notes 167-168.

171 Id.

172 Id.

173 Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

174 The definition of "sonic idea" is the author's.

175 The definition of "sonic expression" is the author's.

176 In the author's conception, "sonic" ideas and expression are distinct from "musical" ideas and expression. Although there is a temptation to conceptually wed "musical" notes with their performance, a musical composition can exist even if never performed. Likewise, the waveforms and electrical currents that comprise "sounds" exist, at least in the abstract, even before a musician performing a musical composition causes the "sounds" to be audible. Sonic expression, then, even if its precise bound- aries and definition can never be "fixed," can be rationally described as owing their existence to the underlying sonic ideas that make sound possible.

177 Steve Mizrach, An Ethnomusicological Inves- tigation of Techno/Rave, at http://www.fiu.edu/ -mizrachs/housemus.html (last visited Apr. 8, 2005).

178 See supra note 142.

179 See Tausig, supra note 158 and accompanying text.

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