Lawrence Ferrara spent some time this morning talking about what he called an erroneous "conflation" between standards for substantial similarity in composition and sound recordings. Pardon me, but aren't they the same test? The fair use and de minimis provisions of copyright law apply equally to sound recordings and musical compositions, and that's precisely where the Sixth Circuit got things wrong in Bridgeport Music v. Dimension Films.

Meanwhile, Shoshana Zisk reports speaking with the artist, Michael Hampton, whose three notes were actually sampled, and he said he'd sooner enter the Downhill Battle remix contest than to sue (of course he didn't own the copyright).

Update: Michael Bell-Smith, creator of the "Three Notes and Counting" contest, gave a demonstration of sampling and remix technology. He first played some of the completely distinct entries built using only the same guitar riff, then used a few programs onstage to turn the guitar into a set of drumbeats. Amazing. At what point will we recognize that new sound as something other than an "infringing sample"?

"This conference is focused more on creativity than on law," says Charlie Nesson, to start things off. I think that's why I'm so excited to be here -- because at the end of the day, I'm a lawyer so I can enable creativity in art and technology.

Next, Eric Hellweg talks with singer-songwriter Mike Doughty. Guitar in hand, Doughty demonstrates how at age 15, he realized there were really only a few different chord progressions -- and with those building blocks, he could write anything. "When I sit down to write songs, I'll look at what I'm listening to, and see how I can adapt it."

Doughty recognizes and enjoys the way technology shapes art, from sampling to the ability to sample from dozens of his own recordings to pull out the best parts to make a track. He's more ambivalent about the way the law has changed art: sample clearance comes out of the artist's budget, yet if his compositions are used in a recognizable way, he'd like to be paid. Filesharing isn't going away, but he fears for the younger artists who haven't yet made their audiences.

Finally, a bit of chilling effects, Doughty notes that the samples artists have to clear are those "you can be busted for" -- and "busted" means sue, not necessarily found liable at the end of the day. Fair use, once again, is not.