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There's been a lot of talk lately about whether or not digital music sold over the Internet should
come wrapped in digital rights management (DRM) software. This latest twist in the digital
music saga ought to be viewed in some context. A review of the history of music, recording, and
ownership demonstrates that the argument is anything but straightforward.

What was great about the old Napster was that among the peer-to-peer community a vast
shared library self-assembled that included every piece of recorded music that anyone had ever
cared about. The most obscure as well as the most popular tunes were there for the taking,
John Fahey's "Dance of the Invisible Inhabitants of the City of Bladensburg" along with the
Stones' "Gimme Shelter." It was like a huge lending library, the Smithsonian, the Harvard
University Library, at your fingertips. As soon as ownership entered into it, the barbed wire went
up, the frontier was closed off. No more riding the range, free as a bird. By definition, the walled
garden can contain only a subset of the world's flowers. Fragmentation ensued. Apple has
been pulling it back together again piecemeal through force of near-monopoly, but some
copyright holders have held out, denying iTunes their wares, which makes the iTunes directory
far from complete. And Apple has not bothered to perform a public-service library function by
digitizing the old archives that most people don't care about and making it available free of
charge.

Let's examine this ownership stuff more closely. When the wandering minstrels sang for their
supper, the moment of ownership took place in four dimensions: that particular duke's court at
that particular moment in time. The experience was "owned" by both player and listeners and
carried in friable memory thereafter, if at all. The music was truly "owned" by both parties, all the
more so because the glow in the eyes of the listeners (perhaps particularly the glow in the eyes
of the duke's beautiful daughter) was the positive feedback that made the minstrel play all the
more ardently, and his greater ardency elicited a yet brighter glow in their eyes.

When Alan Lomax went around America's prisons and byways with a tape recorder, archiving
the songs of unknowns, he ended up "owning" the music because he had recorded it. The
concept of recorded music was still new enough that people were a bit unclear on the concept.
And having enough money to press a record was usually the purview of a well-heeled producer
who ended up extracting most of the value of the music, leaving little left over for the musicians.
Good thing that Lomax contributed most of his recordings to the Library of Congress. That
disposition was in the spirit of the old minstrel days: no one, or everyone, owned the music.

But the forces of Copyright © were gathering. Walt Disney, having gained so much value from
the creation of characters like Mickey Mouse and Donald Duck, sought to extend copyrights for
longer and longer periods. Thus, the "public domain," that area of creative product not owned
by anyone in particular, started to shrink. You can be sure that Mickey Mouse will not be
available for derivative work during my and perhaps your lifetime. Even ancient works, Bach
preludes, fell under ownership because live musicians like Yo-Yo Ma — a live musician who
likes to eat — recorded them.

And here we have the dilemma, Yo-Yo no longer sings for his supper. His records do the
signing for him. Artists play to a blank wall in a studio, undisturbed by interactions with a
restless, coughing audience, and the audience listens to the music in the comfort of their living
rooms without having to clap politely for the players. People come into their apartments and flip
on the music as if they were flipping on a light switch, talking, popping open beers, and
munching on snacks as they sit down and go over the day's mail with their favorite artist playing
in the background.

Gone, the connection between player and listener, except, of course, in concert. Concerts are
still a place where the artist and audience can relate to each other. But even here, the artist (and
his or her representatives) jealously guard the content, and woe unto you who get caught
bootlegging those tapes! You can share the experience, but you get to walk away with only the
memory (or pay for a CD on the way out the door from the instantly produced concert recording).

And copyright law reads that the buyer does not actually ever own the song he or she purchases,
just that instance of the song, with some provisions for fair use. The big loophole that currently
allows buyers of CDs (but not DVDs) to rip them into open-format digital files means that those
buyers are unlikely to ever purchase that song again. But for the folks with long memories and a
lack of technological expertise and an enterprising spirit, we can recall buying an LP, then
buying the same song again on cassette, and one more time on CD as technology advanced.

All right. Where are we now? The latest wisdom comes from Steve Jobs, who in his
disinterested way, recently suggested that songs be sold in open format (mp3). His reasoning
was that most digital music in people's libraries is already in mp3 format because it was ripped
from purchased CDs or "acquired" over the Internet from someone else who ripped the tunes
and made them available. This suggestion was his answer to recent calls by others in the
industry for Apple to license its DRM openly. The studios don't quite believe, though, that
audiences will still buy their wares if they are generally available in open format. They think (and
I agree with them) that it will be like a Hollywood sequel: The Return of Napster, Napster Redux,
or Napster Rises from the Dead. No reflection on the current incarnation of Napster, a much
reduced shadow of its former self that sells digital music legitimately over the Internet.

So, I'm going to make a radical suggestion, and you content owners aren't going to like it. I think
musicians should go back to singing for their supper. I think that all recorded music should be
in open format, mp3 most likely, and should be regarded as marketing and advertising for the
artists. Let people pass around songs as they wish, acquire them from wherever, and even
allow a peer-to-peer network to re-establish the Great Archive. The more people play your
music, the more they become familiar with you and like you. When you come to town, your
listeners would be the first in line to buy tickets to your concert. Now, musicians would have to
change their business model, but that might not be such a bad thing. They would have to make
their money on ticket sales for their concerts and the merchandizing of branded goods such as
mugs and t-shirts. I know it's radical, but the rest of us have to work for a living. Why shouldn't
they?

© 2007 Endpoint Technologies Associates, Inc. All rights reserved.