Listen to the Music

Time Warner president Richard Parsons certainly put down the marker this week at the Jupiter Online Music Forum. “Digital music is illegal,” he thundered, and music companies will use the legal system to force it underground for good.

He might be right. Two laws passed with industry insistence in the late 1990s (the Digital Millennium Copyright Act (DMCA) and No Electronic Theft Act (NETA)) support the notion that software can be made illegal, and people can be jailed for breaking copyrights.

A generation ago, remarks like those of Mr. Parsons and the backing of the government would have crushed dissent or at least generated anger. Instead, the collective response was “so what?”

The reason for that is simple, but mysterious to those who, like Mr. Parsons, don’t understand the basic change the Internet has wrought. Majority rule isn’t good enough anymore. Consensus rules the Net. And if you don’t have consensus, you can’t enforce anything.

Does Parsons have a consensus behind his argument? Certainly he has a government consensus, but does he have a popular consensus? Well, I was driving around Atlanta recently and heard (of all people) James Taylor speaking on (of all things) a sports-talk radio station. I didn’t catch the whole interview, but he was asked about Napster, which Parsons wants to destroy.

I can say this because I’m near the end of my career, Taylor responded, but it’s good to see the record companies get some of their own back at them.

Jupiter Communications, which sponsored Parsons’ talk, also disputes his conclusions. In a paper issued the day he spoke, the company said 45 percent of people who use music-sharing services like Napster have increased their music purchases. In other words, the more music you get free, the more you buy.

The problem is the law is on Parsons’ side. It’s likely that U.S. courts, based on the DMCA, will declare Napster illegal. It’s very possible that some college kids will be thrown in jail on felony charges under the NETA.

It’s even more likely this will not help Time Warner’s bottom line one bit. I can’t make interview subjects take my calls, and PR people can’t make me take their calls either. Time Warner can’t make people pay for digital music if they don’t want to.

As I’ve said before, Napster, Gnutella, and programs like them are basic protocols. You can no longer make them illegal than you can make FTP or email illegal. If music lovers are forced underground, millions will go there, and gladly. But they won’t be forced into paying Time Warner one red cent if they really don’t want to pay it.

There are answers to this dilemma, but the power over music has moved decisively away from folks like Mr. Parsons to folks like Mr. Taylor. It will be a bloody battle companies will fail and people will go to jail because of silly men like Richard Parsons. But in the end, the music will belong to its makers, its listeners, and those who can negotiate win-win deals between them.

If musicians like Mr. Taylor simply refuse to give away future copyrights in exchange for recording contracts, the power will move with them, and customers will gladly follow. If Time Warner and the other music companies want any place in the new age, they had better change their tune fast.

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