In 2004, a panel of the Sixth Circuit issued an opinion in Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004). On December 20, 2004, the full court of appeals denied a petition for rehearing en banc, but a panel rehearing was granted limited to discrete issues raised in Section II of the original panel opinion, 401 F.3d 647 (6th Cir. 2004)(perhaps the quid pro quo for the rehearing en banc being denied).
On Friday, June 3, 2005, the panel issued a new opinion in which it "adhere[d] to our conclusions and amend the opinion to further clarify our reasoning." 2005 U.S. App. LEXIS 10140 (6th Cir. June 3, 2005).
The original panel opinion, as well as Friday's, are controversial, for at least two reasons. First, the panel adopts a different approach to infringement of a musical composition embodied in a phonorecord than for infringement of the sound recording embodied in that same phonorecord; second, the difference lies in the lack of any requirement of even a de minimis taking for sound recordings. (While finding that a sampling of three notes was infringement, the court demurred on whether sampling of one note would be. I fail to see any basis in the court's reasoning for excusing the taking of one note when three is infringement).
While the court stated that its analysis began "and largely ended" with the language of Section 114(a) of the Act, there was no language cited to that supports the court's view that Section 114 abolished the previous substantial similarity test employed by the courts for all other subject matter. It is true, as the court stated that a bright line test, one which says "Get a license or do not sample" provides "ease of enforcement." But that is equally true of all other subject matter: you want to parody a work, get a license; you want to write a book review, get a license; you want to quote three words from a poem in a movie, get a license.
The court believed that samplers don't take accidentally, but that is true of all my examples, and the more than de minimis copying requirement for substantial similarity has never been based on unconsicious copying. Nor is there anything special about copying by sampling versus copying by incorporating three notes from a musical composition into another musical composition or into a phonorecord. The court also believed that even three sampled notes have value. Ditto other copying, but whether the portion copied has value has never been the test for infringement (although it is relevant at the much later fair use stage).
Bridgeport is policy making wrapped up in a truncated view of law and economics, shorn of analysis of all the public interest factors and harm to derivative creators that nuanced exponents, such as Judge Posner, engage in. It is also bad for record companies on two fronts (and I think it important to note that this is not an RIAA suit). First, it adds fuel to the fire for those who believe record companies are engaged in an effort to prohibit any and all unauthorized copying (I think this is not an accurate view, by the way). Second, it harms record companies by forcing them (at least in the 6th Circuit) to engage in a retroactive process of determining who they may have to pay off for past, unpaid samples and well as possibly requiring them to institute extremely restrictive future policies.
But in the end, it is creators of new sound recordings who build, transformatively on the works of predecessors who will suffer the most, and thereby all of us. Hopefully cert. will be granted, and the 6th Circuit reversed.