Jazz flutist James W. Newton struck out Nov. 9, as a federal court in San Francisco denied for a third time his copyright infringement claim against the Beastie Boys and various distributors of the ra

NEW YORK -- Jazz flutist James W. Newton struck out Nov. 9, as a federal court in San Francisco denied for a third time his copyright infringement claim against the Beastie Boys and various distributors of the rappers' 1992 recording "Pass the Mic."

The suit, filed in 2000 in Central District Court in Los Angeles, claimed that a sample used by the Beasties infringed Newton's composition "Choir." Although the Beastie Boys licensed Newton's recording before releasing their song, they claimed that the six-second sample of the underlying composition -- consisting of only three notes -- was too small to require a license under copyright law, even though it was looped more than 40 times in their song.

The District Court agreed with the group and in 2002 granted summary judgment. Newton appealed; the Ninth Circuit Court of Appeals also sided with the Beastie Boys in 2003. The court held that the amount of the composition sampled was too small to be unlawful; it was a lawful "de minimis" use.

Newton petitioned the three-judge panel to reconsider its decision or to hold a rehearing en banc -- with the participation of all active Ninth Circuit judges.

In this latest ruling, the appellate court denied the request, but it also amended -- and republished -- its year-old opinion.

According to Beastie Boys attorney Ken Anderson, of Loeb & Loeb in New York, the changes in the opinion appear minimal and, if anything, strengthen the court's original position. The rappers are happy this case is finally over, he says.

Meanwhile in Nashville, the Sixth Circuit Court of Appeals has yet to decide whether it will reconsider its Sept. 7 decision involving N.W.A's two-second sample of a Funkadelic recording. That court held that the "de minimis" sampling was copyright infringement, even though the amount sampled was too small to infringe the underlying composition. The RIAA filed a friend-of-the-court brief supporting the request for a rehearing.