Speech by Richard Parsons.
Re: Napster case.
Date: February 20, 2001.
Source: The RIAA provided Tech Law Journal with an MS Word version of this speech. Tech Law Journal converted it into HTML.

"A HOUSE DIVIDED CANNOT STAND"

REMARKS BY RICHARD D. PARSONS
CO-CHIEF OPERATING OFFICER
AOL TIME WARNER

TO

THE RECORDING ACADEMY
ENTERTAINMENT LAW INITIATIVE
REGENT BEVERLY WILSHIRE
BEVERLY HILLS, CALIFORNIA

FEBRUARY 20, 2001

THANK YOU, QUINCY.

THE GREAT EUBIE BLAKE, WHO LIVED TO BE OVER A HUNDRED, REMARKED ON HIS CENTENARY BIRTHDAY.....

"IF GOD HAD LET ME KNOW I WAS GOING TO LIVE THIS LONG, I’D HAVE TAKEN BETTER CARE OF MYSELF."

WELL, IF I’D KNOWN THAT SOME DAY I’D HAVE THE HONOR OF BEING INTRODUCED BY THE GREAT QUINCY JONES, I’D HAVE PURSUED A CAREER IN MUSIC INSTEAD OF LAW.

THERE ARE MUSICIANS THROUGHOUT THE WORLD WHO’D DO WHATEVER THEY COULD TO GET THIS INCOMPARABLE ARTIST, COMPOSER AND ARRANGER TO NOTICE THEM.

QUINCY, I’M GRATEFUL TO HAVE YOU AS A FRIEND AND I’M HONORED BY YOUR WORDS.....

I ONLY WISH MY FAMILY COULD BE PRESENT.....

MY WIFE TO HEAR WHAT YOU SAID.....

AND MY KIDS TO BELIEVE IT.

I’D ALSO LIKE TO THANK THE RECORDING ACADEMY ENTERTAINMENT LAW INITIATIVE FOR INVITING ME TO BE YOUR KEYNOTE SPEAKER. RIGHT UP FRONT, I WANT TO CONGRATULATE THE WINNERS OF THE LEGAL WRITING CONTEST. TOO OFTEN PEOPLE CONSIDER THE NOTION OF "EXCELLENCE IN LEGAL PROSE" AS AN OXYMORON AKIN TO OTHER FAMOUS SELF-CONTRADICTORY PHRASES LIKE.....

LITTLE BIG HORN.....

OR CAMPAIGN ETHICS.....

OR JOINT CONGRESSIONAL INTELLIGENCE COMMITTEE.....

OR MY OWN FAVORITE OXYMORON.....

THE MUSIC BUSINESS.

WHICH BRINGS ME TO THE TOPIC I’D LIKE TO SPEND THE NEXT FEW MINUTES TALKING ABOUT—THE FUTURE OF OUR SHARED INTEREST AND MUTUAL CONCERN, THE MUSIC BUSINESS.

AS YOU’VE SEEN, I’VE ENTITLED MY TALK "A HOUSE DIVIDED CANNOT STAND."

THIS, OF COURSE, WAS THE PHRASE LINCOLN BORROWED FROM THE GOSPEL OF ST. MATTHEW IN A FAMOUS SPEECH DECRYING THE GROWING POSSIBILITY OF CIVIL WAR.

THE HOUSE IN QUESTION TODAY IS THE GLOBAL MUSIC BUSINESS WE ALL WORK IN OR, AT THE VERY LEAST, HAVE A VESTED INTEREST IN.

AT PRESENT, IT’S A HOUSE NOT ONLY INTERNALLY DIVIDED BUT FACED WITH A SHIFT AS SWEEPING AS ANY SINCE THOMAS EDISON USED HIS TINFOIL PHONOGRAPH TO CRANK OUT THE WORLD’S FIRST MECHANICALLY RECORDED LYRIC.....

"MARY HAD A LITTLE LAMB, AND ITS FLEECE WAS WHITE AS SNOW....."

ON THE MUSIC SIDE, ONE WAY TO MEASURE HOW FAR WE’VE TRAVELLED SINCE EDISON’S DAY IS TO IMAGINE HOW LIL’ KIM MIGHT EMBELLISH A LYRIC LIKE THAT.

ON THE TECHNOLOGY SIDE, THE SHIFT HAS BEEN DRAMATICALLY FRAMED BY NAPSTER.

THERE ARE TWO CRUCIAL ISSUES INVOLVED HERE.....

COPYRIGHTS AND CONSUMERS.....

I’D LIKE TO REFLECT ON EACH IN TURN.

FIRST, COPYRIGHTS.

AS MOST OF YOU PROBABLY KNOW, AOL TIME WARNER IS THE LARGEST COPYRIGHT OWNER IN THE WORLD. WE OWN SOMETHING LIKE 7,000 FEATURE FILMS, 32,000 TV TITLES, TENS OF THOUSANDS OF PRINT COPYRIGHTS AND A MILLION- PLUS MUSIC COPYRIGHTS.

FROM THIS PERSPECTIVE, WE DIVIDE THE WORLD INTO TWO KINDS OF PEOPLE: THOSE WHO RESPECT THE RIGHTS OF CREATORS AND OWNERS OF INTELLECTUAL PROPERTY TO DETERMINE HOW AND WHEN THEIR PROPERTY IS USED, AND THOSE WHO DO NOT.

NAPSTER AND ITS ILK ARE IN THE LATTER CATEGORY.

STRIP AWAY ALL THE RHETORIC ABOUT FREE CHOICE AND THIRD-PARTY NEUTRALITY AND WHAT NAPSTER HAS BEEN FOUND GUILTY OF IS OLD-FASHIONED COPYRIGHT INFRINGEMENT OR, IN LAYMEN’S TERMS, RIPPING OFF WHAT DOESN’T BELONG TO IT.

AS AN INDUSTRY, WE MUST CONTINUE TO MAKE IT CLEAR THAT THERE ARE NO COMPROMISES OR SHORTCUTS THAT WILL LEAD US TO SETTLE FOR ANYTHING LESS THAN THE LEGAL PROTECTIONS THAT WERE RINGINGLY REAFFIRMED BY THE 9^TH CIRCUIT COURT JUST LAST WEEK.

WE ARE AT WAR WITH THOSE INTENT ON STEALING THE WORK PRODUCT OF OUR ARTISTS FOR THE PURPOSE OF BUILDING THEIR OWN COMMERCIAL ENTERPRISES.

IF I MAY BORROW A PHRASE FROM JOHN F. KENNEDY’S FIRST INAUGURAL, WE MUST BE PREPARED TO "PAY ANY PRICE, BEAR ANY BURDEN, MEET ANY HARDSHIP, SUPPORT ANY FRIEND, OPPOSE ANY FOE" TO PROTECT THE INTERESTS AND PROPERTY RIGHTS OF THOSE IN THE ARTISTIC COMMUNITY WHOM WE REPRESENT.

BUT MAKE NO MISTAKE: THIS ISN’T AN ISSUE OF EXCLUSIVE CONCERN TO THE MUSIC INDUSTRY. MUSIC IS OBVIOUSLY ONLY THE FIRST MEDIA CATEGORY TO BE SUBJECTED TO THIS HI-TECH PIRACY.

FILM, PROGRAMMING AND PRINT AREN’T FAR BEHIND.

IT’S NOT MERELY THE LEGAL RAMIFICATIONS OF THIS ASSAULT ON INTELLECTUAL PROPERTY RIGHTS, HOWEVER, THAT CONVINCES ME A SYSTEM WHICH DESTROYS A PERSON’S CLAIM ON HIS OR HER OWN WORK ISN’T GOING TO STAND.

IT’S ALSO THE COLD, HARD FACTS OF ECONOMIC EXPERIENCE AND COMMON SENSE.

ON ONE LEVEL, IT SEEMS LIKE CHILD’S PLAY TO GO OUT AND BECOME A DIGITAL PIRATE, DISREGARDING THE ISSUE OF WHO GETS PAID AND WHO ACTS AS THE TOLL KEEPER EVERY TIME THE COPYRIGHT IS USED. IN FACT, IT IS CHILD’S PLAY BECAUSE AS SOON AS YOU FACE THE GROWN-UP QUESTION OF STARTING A REAL BUSINESS—A BUSINESS THAT CAN SUSTAIN ITSELF AND GROW IN THE LEGITIMATE MARKETPLACE—YOU HAVE TO DEAL WITH THE FUNDAMENTAL ISSUE OF COPYRIGHTS.

TAKE, FOR EXAMPLE, OUR FRIENDS AT NAPSTER.

DO YOU THINK THEY DOUBT THE IMPORTANCE OF PROTECTING INTELLECTUAL PROPERTY IN A DIGITAL WORLD?

IF SO, GO TO THE "TERMS OF USE" SECTION AT NAPSTER’S WEB SITE. YOU’LL FIND THE FOLLOWING CAVEAT, AND I QUOTE, "THIS WEB SITE OR ANY PORTION OF THIS WEB SITE MAY NOT BE REPRODUCED, DUPLICATED, COPIED, SOLD, RESOLD, OR OTHERWISE EXPLOITED FOR ANY COMMERCIAL PURPOSE THAT IS NOT EXPRESSLY PERMITTED BY NAPSTER."

IN THE END, I THINK, ANYONE WHO WANTS TO BE PART OF A BUSINESS INVOLVING COPYRIGHTED MATERIAL MUST RESPECT THE COPYRIGHTS OF OTHERS, NOT OUT OF A MORAL SENSE, BUT OUT OF THE SIMPLE REQUIREMENT OF SURVIVAL.

THERE’S A PASSAGE IN ROBERT BOLT’S PLAY ABOUT THOMAS MORE—"A MAN FOR ALL SEASONS"—THAT SUMS IT UP CONCISELY. ENCOURAGED BY HIS SON-IN-LAW TO USE THE PREROGATIVES OF HIS OFFICE AS LORD CHANCELLOR OF ENGLAND TO HUNT OUT EVILDOERS AND HERETICS AS RUTHLESSLY AS HE CAN, MORE REFUSES.

"AND WHEN I’D CUT DOWN ALL THE TREES IN ENGLAND," MORE ASKS, "AND GIVEN THE DEVIL NO PLACE TO HIDE, WHERE WOULD I HIDE WHEN THE DEVIL CAME AFTER ME?"

IT’S NOT MY PURPOSE HERE TODAY TO ATTEMPT TO COMPARE THE PEOPLE AT NAPSTER—OR ANYWHERE ELSE—TO THE DEVIL. BUT IT IS NECESSARY FOR ALL OF US TO BE CLEAR-SIGHTED ABOUT THE LOGICAL CONSEQUENCES OF ALLOWING THE DE FACTO ABOLITION OF INTELLECTUAL PROPERTY RIGHTS.

THINK ABOUT IT A MOMENT.

ON THE HUMAN LEVEL, WHAT MUSICIANS OR WRITERS OR FILMMAKERS ARE GOING TO INVEST YEARS OF HARD WORK AND TALENT IN PRODUCING WORK THAT WILL BRING THEM ZERO FINANCIAL RETURN?

ON THE CORPORATE LEVEL, WHO’S GOING TO INVEST IN NURTURING AND DEVELOPING TALENT, BUILDING STUDIOS FOR FILMS, MUSIC AND PROGRAMMING, AND SUPPORTING AN ENORMOUSLY EXPENSIVE CREATIVE INFRASTRUCTURE WITH THE GUARANTEE EVERYTHING THEY PRODUCE WILL BE INSTANTLY AND UNIVERSALLY PIRATED?

TWO CENTURIES AGO, ADAM SMITH DISCERNED THAT THE GENIUS OF THE FREE MARKET IS IN ALLOWING EVERYONE TO PURSUE HIS OR HER OWN SELF-INTEREST. THE END RESULT OF THIS CONSTANT INTERPLAY OF SELF-INTERESTS IS TO BALANCE SUPPLY AND DEMAND, CREATING A SITUATION IN WHICH BUYERS AND SELLERS, PRODUCERS AND CONSUMERS, CAN ACHIEVE A DESIRABLE OUTCOME.

THE WORLD OF DIGITAL MUSIC IS NO EXCEPTION.

IT’S AS MUCH IN THE SELF-INTEREST OF MUSIC CONSUMERS AS OF ARTISTS AND RECORD COMPANIES TO HAVE A VIABLE, SUSTAINABLE SYSTEM THAT CAN SATISFY THEIR DEMANDS AND PASSIONS, AND OFFER A CONSTANT FLOW OF NEW TALENT AS WELL AS CATALOGUES COMPRISED OF A WIDE VARIETY OF GENRES AND ARTISTS.

THAT SAID, WE HAVE TO BE CAREFUL NOT TO ALLOW OUR SATISFACTION OVER THE 9^TH CIRCUIT COURT’S DECISION TO LEAD TO COMPLACENCY.

JUST AS THE COURTS HAVE SPOKEN DEFINITIVELY ABOUT THE SANCTITY OF INTELLECTUAL PROPERTY RIGHTS, CONSUMERS HAVE SPOKEN DEFINITIVELY ABOUT DIGITAL DOWNLOADING.

THEY WANT IT. THEY LIKE IT.

FOR MILLIONS OF THEM, ESPECIALLY IN THE DEMOGRAPHIC GROUPS THAT ARE THE MOST ACTIVE MUSIC CONSUMERS, IT’S ALREADY A NORMAL PART OF THEIR LIVES.

THIS PRESENTS OUR INDUSTRY WITH A TREMENDOUS OPPORTUNITY.

AS MY FRIEND AND PARTNER BOB PITTMAN PUTS IT, "HOW OFTEN DO YOU GET TO LAUNCH A BUSINESS WHERE YOU KNOW MILLIONS OF CONSUMERS ARE LINED UP AND WAITING FOR YOU?"

THE QUESTION IS, HOW DO WE GET THERE?

YOU DON’T HAVE TO BE A HISTORIAN OR MEDIA GURU TO KNOW THAT THE DRIVING FORCE BEHIND EVERY SUCCESSFUL MASS COMMUNICATIONS TECHNOLOGY HAS BEEN WHAT TECHIES CALL ITS TRANSPARENCY, AND WHAT THE REST OF US MIGHT REFER TO AS "EASE OF USE," OR BETTER YET, THE KISS PRINCIPLE.....

K-I-S-S..... KEEP IT SIMPLE, STUPID.

THIS MEANS THAT THE CONSUMER’S INTERACTION WITH THE MACHINE IS IMMEDIATE AND UNCOMPLICATED. HIT THE SWITCH, TURN THE DIAL, PRESS THE BUTTON AND, BINGO, YOU’RE WHERE YOU WANT TO BE.

EASE OF USE IS WHAT DROVE RADIO AND BROADCAST TV AND THE VICTROLA AND THE VIDEO CASSETTE AND THE CD.

LOOK AT THE RECENT EXAMPLE OF THE DVD.

UNTIL THE MOVIE INDUSTRY AGREED ON A SINGLE SET OF TECHNOLOGICAL SPECIFICATIONS—SO THAT IT DIDN’T MATTER WHAT DISKS YOU BOUGHT OR WHAT PLAYER YOU USED—CONSUMERS HUNG BACK FROM LEAVING BEHIND THE VHS AND MIGRATING TO A NEW FORMAT.

ALWAYS AND EVERYWHERE, THE COMMON DESIRE OF CONSUMERS IS TO GET WHAT THEY WANT IN THE FASTEST, EASIEST, MOST CONVENIENT WAY POSSIBLE. THE TECHNOLOGIES THAT SUPPLY A STANDARDIZED EXPERIENCE SO READILY ACCESSIBLE AND EASY TO USE THAT NO ONE CAN BE CONFUSED BY IT.....

NOT EVEN SMALL CHILDREN OR ENTERTAINMENT COMPANY EXECUTIVES.....

WILL INEVITABLY BE THE WINNERS.

YET AT PRESENT, WE’RE THREATENING TO SOW CONFUSION AMONG CONSUMERS WITH AN ARRAY OF DOWNLOADING OPTIONS THAT ARE INCOMPATIBLE WITH ONE ANOTHER. EACH OF US IS PURSUING OUR OWN PATH TO THE PRESUMED PROMISED LAND, WITHOUT REGARD FOR THE CONSUMER’S FUNDAMENTAL DESIRE TO NAVIGATE EFFORTLESSLY, SEAMLESSLY AND TRANSPARENTLY.

WE’RE DOING OUR OWN THING WHEN THE ULTIMATE THING—THE WHOLE KEY TO SUCCESS—IS LETTING CONSUMER’S DO THEIR THING.

THE ERECTION OF THIS DIGITAL TOWER OF BABEL IS GUARANTEED TO RETARD THE ARRIVAL OF A DIGITAL MARKETPLACE IN WHICH CONSUMERS CAN GO WHEREVER THEY WANT AND GET WHATEVER THEY WANT WHEN THEY WANT IT.

LET ME BE CLEAR: I’M NOT SUGGESTING THAT WE NEED A SINGLE COMPRESSION, ENCRYPTION AND DECODING TECHNOLOGY; OR A SINGLE MUSIC-PLAYER SOFTWARE; OR A SINGLE RIGHTS-MANAGEMENT SYSTEM FOR TRACKING WHAT SONGS ARE STREAMED OR DOWNLOADED.

IN FACT, COMPETITION IN ALL THESE AREAS CAN BRING INNOVATION AND LOWER PRICES, AND AT AOL TIME WARNER WE’RE CONFIDENT ABOUT OUR ABILITY TO BE A LEADER.

LET A THOUSAND FLOWERS BLOOM.

BUT IT’S CRITICAL THE VARIOUS SYSTEMS BE INTEROPERABLE.

WHETHER THAT MEANS DEVELOPING GENERAL STANDARDS TO ACCOMMODATE MANY TECHNOLOGIES OR SOFTWARE THAT CAN SERVE TO CONNECT OTHERWISE INCOMPATIBLE TECHNOLOGIES, THE MUSIC INDUSTRY, THE COMPUTER INDUSTRY AND THE CONSUMER ELECTRONICS INDUSTRY NEED TO BE FOCUSING ON THIS ISSUE.

TO REALIZE THE FULL POTENTIAL OF THE ONLINE MUSIC REVOLUTION, WE NEED TO ENSURE THAT DOWNLOADING AND STREAMING ARE SIMPLE AND FUN. THE ONLY CONCERN OF THE CONSUMER SHOULD BE WITH THE MUSIC, NOT WITH STORAGE OR SOFTWARE COMPATIBILITY OR ANY OTHER TECHNICAL NUANCE.

NO SINGLE COMPANY OR GROUP OF COMPANIES CAN DICTATE WHAT THE SOLUTION WILL BE. ULTIMATELY—AND RIGHTLY—IT’S THE CONSUMER WHO’LL DECIDE.

ONLY BY KEEPING IN MIND THE ROLE OF THE CONSUMER AS WE GO ABOUT OUR INDIVIDUAL EFFORTS TO DEVISE THE BEST TECHNOLOGIES POSSIBLE CAN WE CREATE AN EXPERIENCE SIMPLER, BETTER AND CONTENT RICHER THAN ANY—FREE OR OTHERWISE—THAT ARE PRESENTLY AVAILABLE.

AT THE VERY BEGINNING OF OUR NATIONAL EXPERIMENT IN CREATING A DEMOCRACY RULED BY LAW RATHER THAN THE WHIMS OF DESPOTS OR MOBS, BEN FRANKLIN OBSERVED THAT EITHER HE AND HIS COLLEAGUES HANG TOGETHER OR THEY WOULD MOST CERTAINLY HANG SEPARATELY.

TODAY, WE FACE A SIMILAR CHOICE.

IF WE GO OUR SEPARATE WAYS, IF SOME OF US COMPROMISE ON COPYRIGHTS AND OTHERS IGNORE THE WISHES OF CONSUMERS FOR TRANSPARENCY, WE’LL DESERVE THE CHAOS THAT ENSUES.

BUT IF WE DO IT RIGHT, IF OUR HOUSE IS UNITED ABOUT INTELLECTUAL PROPERTY AND INTEROPERABILITY, THEN WE CAN HELP CREATE A TRULY FAIR AND TRULY COMPETITIVE MARKETPLACE WHERE THE FOCUS IS ON BRINGING CONSUMERS EVERYWHERE THE BEST AND BROADEST RANGE OF OPTIONS FOR THE MUSIC THEY WANT TO HEAR.

A HOUSE DIVIDED CANNOT STAND.

THE CHOICE IS OURS.

THANKS FOR LISTENING.