From Napster to Sampling to AI: Copyright Law’s Role as the Sheriff to Emerging Technology

The views expressed in this article are those of Richard Busch, Special Counsel at Adams & Reese and a nationally recognized intellectual property litigator. Busch has represented clients in landmark music copyright cases, including the Blurred Lines verdict. Prior results do not guarantee a similar outcome.

Copyright law rarely meets new technology at the start. More often, it arrives after technology, and those behind it seeking to push (or ignore) the law for monetary gain have already changed markets, habits, and expectations. In music, that pattern has repeated across many major technological shifts. This article focuses on several: digital sampling, which made fragments of existing recordings newly usable in the studio; digital downloads, which changed the economics of distribution; interactive streaming, which made all music available for license on demand; platform music libraries, which embedded music into social media tools; and artificial intelligence, where those building literally trillion dollar businesses have trained on copyrighted works, and used others’ voice and likeness. In each of these instances, creators and rights holders have had to ask courts, Congress, or regulators to apply existing legal frameworks to commercial realities.

My work in music copyright litigation has often involved a recurring collision between music, technology, and copyright law. Throughout my legal career, I have handled landmark music copyright matters at several of the industry’s most consequential technology shifts. These include digital sampling in literally hundreds of cases involving Bridgeport Music, Inc. (a music publishing company) and Westbound Records (its sister record label and owner of sound recordings) as the Plaintiffs (482 to be precise), as well as a multitude of other sampling disputes; the rise of iTunes and what royalties artists should receive for permanent downloads in F.B.T. Productions, LLC v. Aftermath Records; determining the bounds of copyright infringement in the Blurred Lines case; and later in several actions against Spotify and other digital distribution platforms. I have now filed several cases against AI companies for copyright infringement and claims under the Digital Millennium Copyright Act.

Sampling and the Birth of the “Get a License” Era

In the Bridgeport/Westbound litigation, the shift was the rise of digital sampling as a core tool of music production. Before that shift, borrowing from earlier recordings was more limited and harder to manipulate at scale,[1] but digital samplers allowed producers to isolate, alter, loop, and incorporate fragments of existing sound recordings into new works. In 482 cases, we literally sued the entire rap music industry for copyright infringement. We won every case we tried, and settled roughly 90 percent of those cases, with Bridgeport receiving a percentage of the infringing songs. The percentage depended upon the use of the Bridgeport song and the Westbound-owned sound recording. Bridgeport thus ended up owning a portion of hundreds of the most iconic Rap songs of the 90’s. The most famous case emanating from that litigation (although our trial victory in the Bad Boy Records case was my personal favorite) was Bridgeport/Westbound Records v. Dimension Films, which centered on a manipulated two-second sample from Funkadelic’s “Get Off Your Ass and Jam” used in N.W.A.’s “100 Miles and Runnin’” without permission. After the district court applied a de minimis analysis, finding that the chord was so short and manipulated that a listener would not know it came from the original recording, we appealed, relying on the language of the Copyright Act itself, and secured a reversal in the Sixth Circuit, which rejected the de minimis defense for the sampling of a copyrighted sound recording. The Sixth Circuit agreed with us that Section 114 of the Copyright Act (governing sound recordings) makes clear that the use of “any” sound from an original sound recording is copyright infringement. A new sound recording can replay the sounds to make it sound the same without infringing the sound recording (it would still infringe the underlying musical composition without a license unless de minimis), but the sound recording would not be infringed. The Sixth Circuit’s message on copying even one second of a sound recording, even if manipulated so it did not sound like the original, was blunt: “Get a license or do not sample.”

The decision did more than resolve one dispute. It forced a maturing industry practice into the language of copyright ownership and licensing. Dimension Films remains controlling in the Sixth Circuit, influenced music licensing practices, was cited abroad in the German Metall Auf Metall sampling litigation, and later formed the basis of a circuit split when the Ninth Circuit rejected its reasoning in VMG Salsoul v. Ciccone, a case in which I was hired to represent the producer of the Madonna song Vogue as the Defendant, with respect to a claim that a second long horn blast from an earlier recording was sampled in Vogue. I, of course, had to deal with and argue that the Ninth Circuit should not follow Dimension Films in this case. The Ninth Circuit, albeit with a Dissent, agreed and dismissed the case. I often joked that if the case went to the Supreme Court, I would argue both sides.

From Downloads to Streaming: New Platforms, New Royalty Battles

The next shift was digital distribution, which began with file sharing in the late 1990’s by Napster, and the record labels all suing Napster for illegal digital downloads of sound recordings and ultimately resulted in the opening of Apple’s iTunes store, in which the labels receive 70 percent of the revenue and Apple 30 percent, and became known as the iTunes model. The question remained, however, how the labels would share that revenue with the artists. Record labels took the position that they were selling records to iTunes, who were then reselling to the public, so the artists’ records sold royalty provision in the recording agreement applied, which was based on a constructed retail price of the album and a very low royalty rate to the artist. Eminem’s producers, F.B.T. Productions (a company owned and controlled by Jeff Bass, Mark Bass, and Joel Martin) contended, however, that the label was not selling anything to iTunes, but rather licensing the recordings to iTunes, and therefore the licensing royalty provision applied, which provided that F.B.T., and Eminem were entitled to 50 percent of the label’s net receipts on licensed income. F.B.T.’s position was not only supported by the language of the recording agreement, but by an essay penned by Steve Jobs himself entitled “Thoughts on Music,” in which he stated that Apple bought nothing from the labels but simply licensed the recordings. That essay resided on the Apple website for many years. The Ninth Circuit agreed that the licensing provision applied to permanent downloads and master tones offered through iTunes and other similar companies. That victory spawned many similar lawsuits and class actions that ultimately resulted in the labels paying out hundreds of millions of dollars, if not more, in additional royalties.

The third shift came in the rise of Spotify and interactive streaming. While F.B.T. was a landmark decision, the music industry soon pivoted from permanent downloads to interactive streaming. Here, Spotify was alleged to have licensed sound recordings from record labels but allegedly ignored the need to license the underlying musical compositions, or, at least, gave it little effort. The allegations were that Spotify knew it would be too difficult to do so while at the same time making sure they were first to market, so they would just infringe now and deal with the consequences later. There were several class actions that resulted and were settled, and I represented numerous independent music publishers in individual lawsuits for copyright infringement. Those cases all ultimately settled.

Blurred Lines and the Limits of Copyright Panic

While not an actual shift, the 2015 Blurred Lines case, occurring within all of these developments, also bears mentioning, since the cry at the time was that winning that case, based on a “constellation” of similar elements, would create some sort of paradigm change, and wreak havoc on the creation of music and stifle creativity. We, of course, argued that was nonsense, because the development of original music should not depend on copying, and so Blurred Lines would encourage rather than discourage the creation of original music and creativity. History has proven us correct, as Blurred Lines was a unicorn and has not opened Pandora’s box to an onslaught of infringement cases. In fact, there has never been another “Blurred Lines.”

Social Media Libraries and AI: The Next Copyright Frontiers

The next area of infringement worth discussing results from the rise of TikTok and Meta’s Reels, where music libraries are built directly into social media tools, with the allegation that those social media platforms are thereby engaging in willful copyright infringement. The National Music Publishers' Association (NMPA) went after TikTok for this and ultimately entered into a settlement, while in pending litigation, my client Eight Mile Style has asserted claims against Meta for willful copyright infringement involving its music libraries on Facebook, Instagram, and WhatsApp.

The latest actual and most pronounced shift of them all, artificial intelligence, is the most consequential frontier not only for music but for humanity. The U.S. Copyright Office launched its AI initiative in early 2023, received more than 10,000 comments, and has issued reports on digital replicas, copyrightability, and generative AI training.

While Congress and the Copyright Office have begun responding, there is not presently a complete solution. The TAKE IT DOWN Act became law in 2025 and targets nonconsensual intimate deepfakes, while the NO FAKES Act would create protections for digital replicas of a person’s voice or visual likeness. In Tennessee, there is the ELVIS Act, which similarly makes it unlawful to replicate a person’s name and likeness. For music, that matters because AI tools can implicate not only compositions and sound recordings, but also the commercial value of a performer’s voice, likeness, and identity. The TRAIN Act would create an administrative subpoena process to help copyright owners determine whether their works were used to train generative AI models, and disclosure proposals, such as the CLEAR Act and the Generative AI Copyright Disclosure Act, would require notices regarding copyrighted works used in generative AI systems.

Meanwhile, numerous cases for copyright infringement and claims under the Digital Millennium Copyright Act have been filed. I myself have filed several cases. There have been some important decisions that have been handed down in these cases, including on the defense of Fair Use. While I cannot discuss my own pending litigation, other than what is in the public docket, I will most certainly address these cases and this topic in detail on October 1 at a presentation I am leading at the Adams & Reese-sponsored event discussed below.

The Adams & Reese October 1 Event to Cover It All

On October 1, 2026, Adams & Reese is hosting an event at The Virgin Hotel Nashville entitled “10 Years After Blurred Lines: It’s All Blurrier Than Ever,” a presentation on music, copyrights, AI, and related developments in copyright law. The program will also feature the musicologist from the Blurred Lines case and Founder of Judith Finell MusicServices Inc., Judith Finell, and Adams & Reese Partner Lynn Morrow will moderate a Q&A panel following the presentations.

We will be discussing all of the foregoing, with the underlying message from the last 25 years being clear: Rights holders help shape the law by acting. We cannot afford to wait for legal answers to be written for us. We have to help write the law.

FOOTNOTES

[1] Creating drum loops was a time-intensive, manual process that required manipulating reel-to-reel tape recordings and manual manipulation of the size of the loop, and precise recording to create the sample. See The Story Behind The First Ever Drum Loop in Pop Music! and Questlove: Back To The Roots - DRUM! Magazine