Digital sampling is the method by which musicians place "previously recorded portions of another artist's work in a new recording." (1) The legal ramifications of digital sampling have been said to add "another layer of complexity to copyright law." (2) This complexity has created a burden for the advancement of rap music, a genre that depends on sampling, almost entirely, for its distinctiveness. (3) The lack of a clear legal standard promulgated to handle digital sampling has led to a wealth of copyright scholarship. In fact, the popular appeal of digital sampling scholarship has led one scholar to declare the subject, "the student author's favorite dead horse" (4) as it relates to copyright infringement. While that assertion may be true, this particular note "beats" to a different tune. This note focuses on the educational use defense to copyright infringement and its application to rap music. Specifically, the position advanced is that sampling is an inherent aspect of rap music, and rap music has a useful, artistic, educational value for African Americans. Therefore, digital sampling by rap artists should be accommodated in the educational use provision of the Digital Millennium Copyright Act ("DMCA"). (5) Additionally, the incorporation of rap music under educational fair use should allow for the use and sharing of samples in rap songs absent licensing fees. This note further suggests that among the manners by which rap music can progress and be promoted, as suggested in the Copyright Clause of the Constitution, (6) is to embrace the technological advancements of the last decade, particularly peer-to-peer ("P2P") file sharing. The integration of P2P technology for rap artists can provide faster and greater access to samples to be used in songs; however, recent judicial mandates have made its incorporation difficult. African Americans are the chief purveyors and beneficiaries of rap music. The Internet Age, however, finds African Americans lagging behind other races in computer access and usage. The ascension of Napster, a P2P file sharing program, was rap music's hope, and the file-sharing program's ultimate downfall was a roadblock in the genre's progression. If Congress or the Judiciary uses its power to accept the rap music educational fair use exception, the many woes stifling the progress of rap music can be stalled, including excessive sampling payments.
II. COPYRIGHT LAW AND THE AFRICAN AMERICAN
The Copyright Clause of the Constitution was passed during the Constitutional Convention without much debate. (7) During this Convention, it appeared self evident that there must be a mechanism in place to secure the products of the mind and encourage further intellectual development. At the time that the Copyright Clause was penned, African American slaves were viewed as property. The country's highest Court would later declare this perception law. (8) Whereas property cannot own property, it is not at all unreasonable to suggest that the founders of the United States of America, in all their infinite wisdom, did not have Blacks in mind when they penned the Copyright Clause.
Under the Copyright Act, producers of intellectual work are entitled to a "bundle of rights," (9) which the 1909 Copyright Act makes explicit. (10) Under the 1909 Act, however, one's work was entitled to copyright protection only after publication or registration. (11) Although the copyright law was facially neutral, meaning it did not have the intention of harming African Americans, it nevertheless had a disparate impact on them. (12)
The African American culture is an artistic and creative one. During the passage of the 1909 Act, much of the popular music was taken from African American culture, (13) For a class of people that had very little access to education and economic assistance, the 1909 Act's rigid notice and formal registration requirements made African Americans vulnerable to exploitation. …