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The day the music died.

Steve Jobs is right: music should be free. All sound recordings should be free. When the greatest American heroes, the first Americans, gave up their homes and their lives to make our world a better place, they left behind a powerful and more complete message than the one recently voiced by Mr. Jobs: Speech should be free.

In the complex reality of today’s media, that message has been lost. Can my words, for instance, be printed in The New York Times? Sadly, no—I can’t economically justify the cost of a full-page ad. I know that I can publish on the Internet and hope.

My name on the Internet is Fanning. I am I was the Founding Chairman and CEO of Napster. I started the company in 1999 with my nephew, Shawn, who quickly became the public face of Napster. Shawn is both one of the smartest and nicest people I know. Unfortunately, our company was killed just two years into its existence by a Federal Court judge, with no subsequent reprieve from the Supreme Court. Our message at trial, and at work, was that that Internet has the power to set music free—not just free in the economic sense (as the cost of distribution is virtually eliminated), but more importantly, free in the sense of freely available.

I recall the day, in 1999, when my son, John, returned from school with a project due on Dr. Martin Luther King. Though just in middle school, he was to give a prepared presentation on Dr. King in front of the entire school on the following day. He was well-read and well-prepared. I asked him if he had ever actually heard Dr. King give his speech. He said, “No, how could I possibly do that?” He had of course read a transcription instead. I immediately downloaded Dr. King’s speech from Napster. We sat and listened together. I was proud to have been a part of making that possible.

While true that I was never interested in helping Metallica to make their message more readily available to our youth, it is also true that many great Americans have chosen to deliver their messages in the powerful form of powerful music. And it was undoubtedly our aim to set their messages free in the form of Mp3.

“What they don’t understand, or they can’t control, humans will kill.”— Fanning

That simple truth, one demonstrated by the death of Napster, seems wired into our DNA. I doubt a simple letter can change that. What can change that, or help establish a collective understanding, is the free flow of ideas. Until it does, it is control that is required to save the lives of the world’s most important messages. The music companies require control over the economics of those messages. Digital rights management software (DRM) presently gives them control over both the economics and the flow. You can ask them to voluntarily give that up—quite frankly, they never will. Good luck trying.

The structure of American Government, however, another gift from our Founding Fathers, can be the solution to establishing free flow within an economic framework that satisfies content owners. Through our representative democracy, a collective understanding, debated and established amongst some of the most profound and best educated-thinkers our country has raised, can shape the controls under which the rest of us live.

My first exposure to Senator Orin Hatch came while watching the Senate Judiciary argue the merits of impeaching President Bill Clinton. It seemed to me that the great institution of the American Presidency was being decimated by those who felt the moral integrity of the President did not meet the high standards required to hold that office. That idea was one I didn’t completely understand. When Hatch explained, however, that he was a writer, producer, and performer of Christian music, and that the messages of his music could not be published under a system that favors the messages of bands with less wholesome, if more popular, messages, I did understand. Over 95% of the music and sound recordings available on Napster on a per-title basis were not copyrighted by the plaintiffs in the lawsuit. Senator Hatch, and 95% of the art and ideas made available on the net, needed Napster to set their messages free.

Collectively, Americans understand the power of what we have all invented. Individually, copyright-holders are still struggling. It is collectively, then, that America’s lawmakers can institute a relevant statutory license for music, and set those messages free. A statutory license would insure that artists would be entitled to compensation for every MP3 file transferred without the need to negotiate licenses. Music would be free (as in freely available) and every artist no matter how small would be compensated for their work. That statutory license might be the last hope for an industry that will otherwise quickly disappear. Ironically, they will fight it to the death.
Another great institution, American movies, faces the same challenge. Sadly, they are doing no better. I have personally tried hard to license the messages of John Stewart from the Daily Show, Star Wars by George Lucas, and most of the other formal studio content—all with little luck. If you’re interested in true irony, try licensing Steve Jobs’s content from Disney. Let’s just say it was much easier for the Boston Red Sox to win the World Series. The task of licensing content in America today is insurmountable, and requiring it will kill the very industries demanding it.

While Google makes John Stewart’s messages available, Senator Diane Feinstein of California calls for a revocation of consumers’ rights to time-shift. Are the 100s of millions of Americans using Google and the Internet still criminals, Senator? I think not. Our great industries—music, movies, technology—are depending on you to understand and evolve. It would seem that our Founding Fathers understood that well ahead of their time. The time for statutory licensing is here, and the message is clear. I only hope that one voice lost on the Internet can be heard again.

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