Author: Jimmy Akin

A reader writes:

I’m an artist (hip hop), and part of the "tradition" of making good beats is
sampling from other records. Technically, this is illegal without
permission.

Apparently so. I was surprised, thinking that fair use might be a defense for very small bits of music–and it might still be–but

HERE’S A LAWYER SAYING THAT FAIR USE IS NOT A DEFENSE IN SUCH CASES.

Obviously, sometimes the spirit of the law outweighs the letter. For
example, nobody concerns themselves with crossing the street at the
crosswalk, even though it’s illegal not to do so. The spirit of the law is
safety, and so long as you follow it, it’s no sin.

Can I apply this same principle to sampling?

Potentially, but with some significant qualifiers that I’ll get into in a minute.

Theft is defined as the use of someone else’s property against the reasonable will of the owner, and I can imagine uses of short samples of music that would be so insignificant from an economic point of view that they would not be contrary to the reasonable will of the copyright holder (meaning: it would be unreasonable for the copyright holder to object).

For example, if you were making songs purely for your own entertainment and not distributing them, this would likely not be contrary to the reasonable will of the copyright holder any more than it would be for me to make a collage of pictures and passages I had snipped out of books or magazines, provided I don’t start distributing such collages. (There are other examples, but I wanted to pick a clear one, and it’s clearer if you aren’t distributing such works than if you are.)

The spirit of the sampling law
is to protect commercial profit off of someone else’s work.

True.

My music,
however, is done for God and the Church. What money I make from it, I give
to charity or I use it to make more music.

That doesn’t do anything to overturn the copyright holder’s right to remuneration, though. It may mean that you are not making money, but it doesn’t give them the money that they would be paid if you obtained permission to do this legally. They’re still out money that the law says is due to them.

I’m not distributing to millions
of people.

This means that the amount of money that the copyright holder is due will be smaller, but they’re still out money that the law says they’re due if you don’t pay it.

Since it’s not intrinsically immoral to sample, is it morally
licit for me to use small samples in my beats? It would be another matter if
I were making entire songs or records available, but these are just small
samples incorporated into the beat.

Prescing from the question of the prudence of the matter (in which you have to reckon the likelihood of getting sued and having to pay huge sums of money that you may not have) and considering the matter strictly morally, it seems to me that you might be able to morally justify sampling if you were doing it for your own entertainment and performing for others in non-commercial (nobody pays money) venues.

But if you are distributing copies (for money or not) or selling copies (even small numbers of copies or for small fees), I would suggest that you do one of the following things:

1. Confine your sampling to the kind of uses mentioned above,
2. Secure permission to use the samples you want to (the guy I linked above says this is often possible to do for free, and it would secure you against being sued),
3. Lay down some material yourself that you can then sample (this would be real cheap or free if you’ve got the skills),
4. Hire or call in a favor from some friends to get some material laid down that you can sample (this should be pretty cheap; maybe just free beer or something), or
5. Move to Canada or another country where they have more liberal sampling laws (probably too much to ask).

Hope this helps!

A reader writes:

Is it wrong or sinful to copy music if it is legal to do so?

In Canada, right around the birth of MP3 and affordable CD burners, the music industry (Canadian and US companies) lobbied the government incessantly about pirating.  They wanted Canada to put a tax on all recordable media especially blank CD’s that would be shared among artists and studios.  Anyway, the government eventually caved and now there is a tax on tapes, blank CD’s, and even MP3 players regardless of whether you intend to use them for copied music or not.

In exchange for the tax, the law allows for Canadians to make copies of music for personal use.  The only restriction is that you must copy the music yourself (i.e. your friend cannot make a copy and give it to you).  There is doubt on whether downloading the music with p2p file sharing clients fits under that law.  Yesterday the courts ruled that it is allowable under that law but there are going to be plenty appeals by music companies.  Some legislators are planning on introducing legislation to disallow p2p downloading of copyright materials but for now its legal.

So what would be the Church’s view on this?  Would there be a difference between physically copying a CD vs downloading a file in given that the former is clearly legal and the later is ambiguously legal?

Here’s are a few supporting links: Yesterday’s Ruling, Copyright Board of Canada

The ultimate standard of right and wrong is the divine law, but the divine law often contains principles that much be given more concrete form in particular situations by human legislators. Thus, for example, the divine law would require that, if one drives an automobile, one must drive it safely (apart from emergency circumstances). It is not determined by the divine law, however, whether one should drive the car on the right or the left side of the road.

Given the way many streets and highways work–and the way human being work–it will be necessary to adopt a policy of either driving on the right or the left for safety reasons, but God doesn’t determine a single policy that all much follow on this point. Instead, it is left up to human legislators to give give the requirement of safe driving more concrete form by determining, in a particular region, whether driving or the left or the right will be required.

Once the legislators have determined that, we are bound by it and–correspondingly–liberated by it. In other words, if they decide that motorists are to drive on the right hand side of the road then when we are in their domain we are bound not to drive on the left hand side of the road but (unless something else intervenes to affect the situation) we are at liberty to drive on the right.

Something similar pertains to music copying. There are basic principles regarding economics, labor, and property embedded in the divine law, but the particular form in which these are to be cashed out (no pun intended) in a paricular society are left to human legislators to determine.

Once they’ve done that in your society, however, you are both bound and freed by what they do. You are bound not to violate the law but also free to take advantage of the liberty it affords.

Thus if Canada (or some other country) rules that a particular form of music copying is legal then it should be regarded as morally permissible–until the contrary is proven.

It is possible for human legislators to so badly botch their job that they make laws which are fundamentally unjust. In these cases one would (at least theoretically) have moral liberty to exceed what the laws allows one to do. Conversely, one might not be morally free to take advantage of what the law allows you to do.

However, there is a moral presumption in favor of the law. If you want to argue that a particular act of a human legislature is unjust, the burden of proof will be on you.

This is going to be very difficult to do in the case of laws relating to electronic copying of music. The whole subject of copyright law is slippery enough and liable to change due to technological innovation that I don’t see a clear argument that it is unjust toward copyright holders and thus that one would be morally bound to refrain from exercising the liberty that copyright law affords one.

Until such an argument emerges, it seems to me that one is within one’s moral rights to avail oneself of the liberty that copyright law permits one. Thus if Canada allows music copying in particular circumstances such as the ones you mention, I don’t see why you can’t do it.

The law you mention regarding personal copying of CDs, tapes, etc., seems settled, and so if I were a Canadian then I wouldn’t have a problem doing that.

If Canadian law regarding peer-to-peer copying is more tentative then it would seem to me that you would be within your moral rights to act on the law as you presently understand it, in keeping with the virtue of prudence.

Thus if it appears that the law would allow you to do p2p copying then you could go ahead and do so unless you foresee a substantial chance that the law will be reversed and that you will be sued for having done the copying during the period when the law was unclear. (The latter doesn’t seem that likely to me, but then what do I know about Canadian law?)

Hope this helps!