Testimony today in Capitol Records, et al v. Jammie Thomas quickly and inadvertently turned to the topic of fair use when Jennifer Pariser, the head of litigation for Sony BMG, was called to the stand to testify. Pariser said that file-sharing is extremely damaging to the music industry and that record labels are particularly affected. In doing so, she advocated a view of copyright that would turn many honest people into thieves.
Pariser noted that music labels make no money on touring, radio, or merchandise, which leaves the company particularly exposed to the negative effects of file-sharing. “It’s my personal belief that Sony BMG is half the size now as it was in 2000,” she said, thanks to piracy. In Pariser’s view, “when people steal, when they take music without compensation, we are harmed.”
Pariser has a very broad definition of “stealing.” When questioned by Richard Gabriel, lead counsel for the record labels, Pariser suggested that what millions of music fans do is actually theft. The dirty deed? Ripping your own CDs or downloading songs you already own.
Gabriel asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. Pariser replied, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’,” she said.
Countless studies have shown that the majority of music on portable music players like the iPod comes from sources other than download services. For most people, that music is comprised primarily of songs “ripped” from CD collections to MP3 or some other comparable format. Indeed, most portable music players comes with software (like iTunes) which is designed to facilitate the easy ripping of CDs. According to Pariser’s view, this is stealing.
We’ve actually heard something similar to this view before. As part of the 2006 triennial review of the effectiveness of the DMCA, a number of content-related industries filed a joint reply with the government on the effectiveness of the DMCA and the challenges that lay ahead for copyright. The argument relating to CDs espoused in the joint reply could be summarized: although nothing has prevented consumers from making backups of CDs, this cannot be construed as authorization from the music labels for them to do so. Thus, there has been no authorization of said backups, and the coincidental ability to make backups currently should not be mistaken for fair use.
Pariser’s views appear to be similar, insofar as she clearly suggests that consumers have no right to make backups of the music that they have purchased in CD form or even in download form.