Letter to Senator Leahy on The Future of Digital Music

Dear Senator Leahy,

This morning I read your statement addressed to the Senate Judiciary Committee hearing last week on "The Future of Digital Music: Is There an Upside to Downloading." It is obvious, judging from the content of your statement, that you possess an understanding not only of the issues involved, but the technology as well. As both a music consumer and a musician, I sincerely appreciate your knowledgeable statement. I would, however, like to address additional issues of importance in regard to digital music.

As a Ranking Member of the Senate Judiciary Committee, no doubt you are familiar with the Constitution and the ideas of the Founding Fathers. In fact, in your statement before the Committee, you specifically referenced Article I, section 8, clause 8 of the Constitution, written to promote "the useful arts." I believe this clause, and its ultimate purpose - the creation of a public commons - has not only been misread by the recording industry, but has been willfully distorted to benefit their corporate interests at the expense of the public at large. Over the years, the recording industry and other holders of valuable IP content have worked to not only restrict the public domain, but have increased the "limited times" requirement of the clause (copyright law now provides for a period of well over a hundred years for originators to withhold their IP from the public domain, or commons).

In 1813, in a letter to Iasaac McPhearson, Thomas Jefferson wrote eloquently of his belief that "ideas should be freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition." I sincerely believe that Jefferson, if he were alive today, would certainly be appalled by the music industry's selfish attempt to keep ideas - in the form of music - out of the public commons.

Moreover, as the Federal Trade Commission has determined, the music industry, as represented by the "Big Five," have colluded to fix prices on CDs. Not unlike Microsoft, the industry has used strong arm tactics, intimidation, and lawsuits to unfairly dominate a remarkably profitable sector of the economy. In much the same way the Department of Justice investigated Microsoft for anti-trust violations, I believe the government should examine the music industry's monopolistic behavior in the marketplace.

Finally, if anything, Napster is indicative of the industry's negligence of consumer need in the area of on-demand music over the Internet. Had the industry addressed this consumer need early last year - when online music was in its infancy - Napster would not be the issue it is today. I believe alleged copyright violations are less important to the industry than retaining firm control over its archaic yet highly profitable methods of music distribution. Obviously, for the monopolistic music industry, consumer migration to the Internet - and the potential for entertainment delivery via the Internet - is of less importance than ensuring control over 90% of all music published and distributed.


Kurt Nimmo

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