Late last week there was the very unfortunate news of the passing of Adam Yauch, better known as MCA, one-third of the Beastie Boys. I know a few people who have known him, and people only have had the most amazingly nice things to say about the guy. Like plenty of other folks, I’ve spent the past few days firing up old Beastie Boys albums, and (in particular) their classic Paul’s Boutique — which Nancy Sims rightfully pointed out: “it’s a sad copyright lawyer that doesn’t at least own” that particular album. And that’s because not only is it one of the all-time great albums, it’s also well known for including hundreds of samples.

Thankfully, for the world, Paul’s Boutique (and a few other classic hip hop albums) got in under the wire, before the industry started throwing around lawsuits against each other for sampling. An analysis last year of what it would cost to clear all the samples if the Beastie Boys decided to put together such an album today, when not clearing every song gets you sued. It turns out that based on how much labels seem to charge for samples, and the massive number of samples on the album, Capitol Records would have lost $20 million on the album, despite it selling 2.5 million copies.

In other words, you could not reasonably clear all the samples. There is no reasonable price.

As a result of that, of course, we can’t have the next Paul’s Boutique, unless it’s done underground and whoever makes it gets lucky that no one spots the work and gets angry. What an incredible step backwards.

In response to all of this, the EFF has pointed out that it would be a fitting tribute to MCA to fix this problemby creating a way to make sure that samples could be used in songs:

We think it’s pretty clear that the samples the Beastie Boys used in Paul’s Boutique and that Girl Talk now uses in his records are classic examples of fair use. Unfortunately, many artists these days are nonetheless under pressure to pay licensing fees for similar uses. Despite the fact that most cases rightfully find that sampling is not copyright infringement, the mere threat of a lawsuit (and the specter of statutory damages) is enough to intimidate musicians and labels alike. This cottage market of sample licensing stands in the way of creating the next Paul’s Boutique – a sad comment on MCA’s legacy.

The time to come up with a new, effective licensing scheme is long overdue. Young artists should be encouraged to remix and create in all the exciting new ways that technology allows, not sidelined by expensive licensing battles. Solving this problem would go a long way in that direction and be a fitting tribute to MCA, the Beastie Boys, and the fantastic remix culture they helped foster.

Forget the Sonny Bono Copyright Extension Act, where’s the Adam Yauch Right To Sample Act? We shouldn’t even have to fight for our right to sample. But… such is the unfortunate state of the law.

Update: Apparently not. The Beastie Boys have just been sued for copyright infringement over samples on Licensed to Ill and Paul’s Boutique (both albums over 20 years old).