First, thank you for the very well thought out and researched comment.

> Your analysis omits the concept of "transformativeness."

You are correct that I am not necessarily considering cases where a sample is modified extensively before being used. Though I will say that, though that might make it legal to use without permission, I myself don't necessarily think that it should be legal even were it changed to an extreme degree. It's something I'd have to think about further and would surely require a case-by-case analysis.

That being said, I do think most sampling that I am aware of would not be transformative. In general -- and maybe this could even be a good theoretical legal test, though it's not for me to decide -- if I listen to an original song, and then a newer one which samples the original, and recognize the sample, then I wouldn't consider it transformative.

> This is why a search engine company can produce a thumbnail of a page without running afoul of copyright law.

I don't know the legal implications of this, but that is surely a very different situation than sampling music. The thumbnail is to give users a quick preview of what to expect when they click into the page. A reused sample is doing just that -- being literally reused in the same way it was used originally except in someone else's work. Surely this disparity of use must have some legal meaning, as I do feel it surely has moral meaning.

> It's also how commercial parody can (though not necessarily) be done without a license from the original author.

Indeed, but again I don't think I necessarily see how that applies to a reused sample in any case except where the new song actually parodies the original (which certainly does happen on occasion, with Weird Al being an obvious example).

> It's also why a judge recently decided that Google's book scanning system, which does not have copyright permission from the owners, is sufficiently transformative without reducing the primary market that it is legal under fair use.

I'd argue that plenty of sampling does indeed reduce the market for the original. Plenty of people seek out a song because they've heard it somewhere and now that "catchy tune" is in their heads. The "catchy tune" gives it economic value, which is being essentially stolen when someone samples without permission.

The Kanye West / Daft Punk / Edwin Birdsong example that I gave elsewhere in this thread exemplifies that. I'm sure that plenty of Kanye West fans who might have bought or otherwise sought out (thinking more of exposure through ads / radio than piracy here) Daft Punk's original wouldn't bother or need to since Kanye's version is essentially Daft Punk's with some rap verses thrown in. That catchy hook is the same in both. EDIT: to be clear, assuming Kanye / Daft Punk obtained the necessary rights I of course have no problem with these songs existing.

> Not everything which is valuable has government-granted monopoly rights. The US does not accept "sweat-of-the-brow" as a basis for copyright, which is why databases cannot be copyright, even if the database itself is valuable.

That is a good point, though I think the combination of a sample being both copyrightable and valuable is a potent argument to those who would say that a misappropriation of a sample is just a "small-potatoes" or irrelevant infraction, legally or ethically. So I suppose I wasn't arguing entirely on the basis of law with that statement.