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When is a music sample not a sample but an actual product? Are those 30-second audio snippets used at online music-retailer websites and in stores considered samples and therefore covered under fair use copyright laws? These are some of the questions that the National Association of Recording Merchandisers are asking the copyright office as another battle heats up between the record labels (represented by the Recording Industry Association of America (RIAA)) and the music retailers (represented by NARM).

In a letter sent to the RIAA last week, NARM is outlining its position with respect to whether a license is required for making and performing sound samples used online or in-store exclusively to promote the sale of sound recordings at the point of sale. NARM says it is pulling its forces together in response to recent retailer complaints that record labels are restricting the use of samples to sell music.

In its letter, NARM points out that the RIAA originally supported the unrestricted use of free samples, but that "in the intervening months, several record companies have begun asking retailers to sign license agreements in order to offer sound samples at the point of sale online." NARM says that one company is taking the position that even sampling which occurs in a store, if provided through an Internet connection and service, must be licensed.

NARM wants to make clear that, although there may "circumstances in which 30 seconds (or even less) might be used in a manner that directly exploits copyright," the organization's position is related solely to content that is offered at the point of sale by retailers who are selling legal copies of sound recordings either in a physical store or over the Internet. "In that context," says the letter, "it is NARM’s position that the employment of 30-second samples solely to promote the sale of lawful copies of sound recordings falls well within the boundaries of permissible fair use. We believe that the 30-second sampling approach adopted by most online retailers, and provided for in the SDMI protocols, is entirely reasonable and warrants the unqualified support of our industry. NARM’s position is that no license should be required if the use of 30-second samples is limited to promotion at the point-of-sale, whether in the store or online, of the same sound recording."

Why would the record labels try to restrict the promotion of new music—in effect cutting off their noses to spite their faces? The NARM folks are wondering this too, and appear genuinely perplexed as to why labels would want to antagonize their sales channels, writing that they "are troubled that retailers are now being told that they need permission, and perhaps payment, to advertise what they sell. Industry practices in support of independent promotion of music by retailers have historically been so strong as to have been codified in law. Why would record companies now be concluding that retailers are no longer fit partners for this practice?"

In addition to promoting music with samples, NARM would like to see retailers continue to have the legal right to outsource the activities and services required for promotion. "Third-party providers of sound samples do not, in our opinion, profit from the intellectual property contained in a 30-second sound sample. There is no consumer market for incomplete songs," says NARM, adding that "third-party providers profit from providing services that facilitate the retailer’s fair use of the sample."

NARM concludes that the use of song samples helps the copyright owners make more money by selling more of their music through legitimate partners. "We are at a loss as to why a label would oppose this practice."