Friday, January 04, 2008

According to Cary Sherman of the RIAA, SONY BMG's in-house lawyer Jennifer Pariser "Misspoke" when testifying during Capitol v. Thomas trial

According to Cary Sherman, President of the RIAA, speaking in an NPR interview available online, Jennifer Pariser -- the head of litigation for SONY BMG -- "misspoke" when she testified in the jury trial in Capitol v. Thomas, as follows:

"Gabriel asked Pariser if it was okay if a consumer makes just one copy of a track they've legally purchased. She said no -- that's "a nice way of saying, 'steals just one copy.'"
Link for Interview with Cary Sherman of the RIAA and Marc Fisher of the Washington Post quotes the "retraction" of Ms. Pariser's sworn testimony by Mr. Sherman as follows:
"The Sony person who [Marc Fisher of the Washington Post] relies on actually misspoke in that trial. I know because I asked her after stories started appearing. It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry."

[Ed. note:Hmmmm.... seems that (a) Ms. Pariser was under oath, and speaking to the jury, when she misspoke, (b) her testimony might have had an impact on the outcome of the trial. Wonder if the RIAA's lawyers have notified the judge.-R.B.]

Commentary & discussion:


Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property


Jadeic said...

Perhaps we should ask how many other times the RIAA may have misspoken under oath. A suitable candidate to look out for would be: 'The MediaSentry evidence is completely inconclusive (misspoken as 'conclusive') proof of the defendants innocence (misspoken as 'guilt'). If ever we needed evidence of their forked-tongue approach the truth this is surely it. Their is no doubt in my mind that they have complete contempt for the judicial process.

tompoe said...

This begs the question as to why the lawyer remains head of litigation for any company, let alone an international corporation.

James said...

"Coming up on the 10 o'clock sports roundup: Home run king Barry Bonds says he "misspoke" when he told a federal grand jury he never used steroids and he thought it was flaxseed oil..."

Anonymous said...

I think the RIAA had a chance here to put most Americans at ease here by just coming and saying that if it is for personal use only, it is "LEGAL" as far as they are concerned. It seems that they want to keep that option (suing for personal use) available, even though it hurts their public image. In fact, it would probably help in future cases against file sharers, if they could distinguish between personal use and sharing.

Oh yeah, and the judge for the Jammie Thomas trial should definitely hear about that the Sony BMG lawyer misspoke. I actually am extremely skeptical about this, and think the RIAA is lying their ass off about this. In my opinion, she knew exactly what the question was given how she answered it.

raybeckerman said...

Of course she knew what the question was. It wasn't a fevered cross examination, it was a direct examination by her own lawyer, Richard Gabriel, with whom she speaks almost every day. And for which she had no doubt been well prepared.

I believe that Cary Sherman suddenly came up with this attempted spin -- despite the fact that my article on the Howell supplemental brief was published on December 11th -- because of adverse shareholder reaction to the Motley Fool article.

The Washington Post and Motley Fool articles showed these 4 record companies are managed by 'fools'.

So Mr. Sherman, being the one who's 'fooled' the 'fools', came up with this manner of rescuing the ship of 'fools'.... by saying that SONY BMG's chief of litigation 'misspoke' while under oath and testifying to a jury, because the RIAA's chief litigation counsel in the p2p file sharing cases doesn't speak clearly enough.

(By the way, he says in the NPR interview that he's told this to other members of the press.... when was that?.... which members of the press?... interesting that they all chose not to publish it.)

Anonymous said...

Ray, can this "misspoke" episode be used by Jammie Thomas in her appeal?



Scott said...

What is the difference between "misspeaking" and "lying"? I'm not a lawyer, so the difference between these two similar terms is lost on me.

Anonymous said...

Amazingly, whether the witness misspoke or not, the opinion of a witness who is corporate counsel for a record company doesn't actually change U.S. copyright law. No individual, save maybe a judge, can unilaterally declare something infringement, nor can they unilaterally declare it legal or fair use. Even if a representative of some company said "well, we aren't suing anybody who does such-and-such," that doesn't make it binding in perpetuity.

I assume that the causal chain of argument goes something like this: the witness misspoke or said something that isn't the official policy of Sony BMG and may not be legally correct. However, the jury may have taken the word of this witness, who is a lawyer for the plaintiff, as factual anyway, and used it as a guideline for interpreting the law. It seems to me to be a little bit of a stretch.

I would love to know a few things about how this statement was treated at trial, since it was "outrageous" enough to cause a stir afterwards. In what context was the witness testifying - was she testifying on her own behalf or as something like a 501(3)(c)/PMK for Sony? Did opposing counsel attempt to confirm this answer on cross-examination? Did opposing counsel take issue with this in closing arguments? Did they put a witness on to refute this claim? Did they (try to) get a jury instruction to specifically clarify the law on this point? (although in this case I think the statute may be less clear than the case law).

Anonymous said...

Saying she 'misspoke' is just a nice way of saying she commited perjury.

Anonymous said...

Cary Sherman is wasting breath. The statement was made under oath. It is impossible to "misspeak" when testifying under oath.