In her opinion, judge Susan Graber states, "Even if one grants the dubious proposition that a listener recognized some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred."
This is reminiscent of Kraftwerk's case against Moses Pelham, which concluded in Pelham's favour on Tuesday 31/05/2016, in which the judge affirmed that if the derivative work did not compete directly with the original work, no infringement occurred.
But 9th Circuit judge Barry Silverman wrote in his dissent, "True, Get a license or do not sample doesn’t carry the same divine force as Thou Shalt Not Steal, but it’s the same basic idea. I would hold that the de minimis exception does not apply to the sampling, copying, stealing, pirating, misappropriation – call it what you will – of copyrighted fixed sound recordings. Once the sound is fixed, it is tangible property belonging to the copyright holder, and no one else has the right to take even a little of it without permission."
Someone needs to point him in the direction of Article I, Section 8, Clause 8 of the United States Constitution, which states:
The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
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