German Court on legality of sampling: it's complicated!

New ruling by the Bundesgerichtshof in the more than 20 year long legal fight between Kraftwerk and Moses Pelham on the legality of a 2 second sample in a 1999 hip hop song by Sabrina Setlur. Instead if reaching a final verdict (which one might expect given that this case has already traveled all the way to the CJEU which answered questions of the BGH) the outcome is still not clear. The BGH ruling states that the use of the sample was likely legal before 2020 (before the InfoSoc directive was implemented in Germany) and likely infringing after that date, but they cant really tell because it’s complicated, so the lower court will need to take another look.

Julia Reda makes the very good point that this flies into the face of the conventional wisdom that fair use creates legal uncertainty while systems with specific exceptions and limitations lead to legal certainty. It is indeed fairly remarkable that in 2020 the European legal system has still not been able to determine if a foundational artistic technique such as sampling that has shaped multiple generations of artists is legal or not.