On April 3, 2001, Don Henley spoke to the Senate Judiciary Committee on the subject of “Online Entertainment and Copyright Law.” To hear Henley say, “Like it or not, Napster has changed everything” makes you realize how far in the past 2001 is, perhaps not in terms of time as much as in technology. And just as a historical side note, also speaking to the Committee was Hank Barry, then-CEO of Napster, who noted that Sean Fanning was in the audience and was 20 years old, which made him, Barry undoubtedly said to be funny as he spoke primarily to a group of people who had white hair, “over the hill.” As Barry is an attorney and a venture capitalist, he probably had a better sense of Congressional humor than I do. And speaking of senators, it did seem odd to see, while watching the C-SPAN coverage of the testimony, Senator Patrick Leahy, then as now representing Vermont (he is presently the longest-serving senator, besting both Chuck Grassley and Moscow Mitch McConnell), sitting next to Orin Hatch (who retired from Congress in 2019 after 42 years—bet you didn’t know you were going to be getting a civics lesson on GloNo), pull out a camera—yes, a full-size camera, as, remember: this was six years before the iPhone—and presumably take a picture of Henley.
It is also worth noting that following Henley, Alanis Morissette spoke, and I must say that she actually did a better job of making a presentation, raising—remember, this is 2001—an interesting argument that because when it comes to royalties musicians were pretty much not receiving them due the the accounting practices of the labels and consequently it wasn’t an entirely bad thing that listeners were getting access to music free from the Internet because from her perspective, she wasn’t seeing anything in the way of remuneration, so that music would help build community which would then allow her (and others) to make money from touring and merch. She also stated, “History has not been kind to artists who have candidly expressed points of view that differ from recording companies.’”
Last week, Henley was back in front on the Senate Judiciary Subcommittee on Intellectual Property Law. The subcommittee is now chaired by Thom Tillis, who is in his first term representing North Carolina, and who is running for re-election this year. When I Googled him the first result is an ad that has below the text headline: “Support North Carolina’s Warrior in the Senate. Donate Here! Conservative. Father. Proud North Carolinian. Husband. Grandfather.” I wonder how his wife feels about her position in the rankings. Apparently the first live concert that Tillis, 59, Warrior, saw was. . .the Eagles. Which segues nicely to: “As a 55-year veteran of the music industry, I was asked, by the chairman of this Senate subcommittee, to come here and testify today on behalf of the creative community—songwriters, musicians, music publishers—also known, in today’s digital world, as ‘content providers.’”
Henley stressed that he was speaking on behalf of the little guy: “It is truly unfortunate—and patently unfair—that the music industry is perceived only in terms of its most successful and wealthy celebrities, when in fact there are millions of people working in the industry, struggling in relative obscurity, people whose voices would never be heard were it not for hearings such as this one being held today.”
Might one not make the argument that it would have probably been more valuable had there been some of the obscure making their case rather than Henley. As Henley testified from one of his residences and was not in Washington, Tillis didn’t have the opportunity to pull out a camera, but you have to believe that the musical selection was made anticipating such an opportunity.
Henley argued against Section 512 of the Digital Millennium Copyright Act, saying that all too many sites—those backed by “Big Tech,” which Henley said he was a stalwart opponent of, even though one could point out that his career was facilitated in large part by “Big Music,” which explains why there are those millions whose music we’ve never heard—are putting up unauthorized material and it is all too difficult to get it taken down. . .and when it does, the same material shows up elsewhere. And those sites “never passed on a penny to the artist for use of their music.”
To be sure, this is a tough problem, quite possibly one that’s unsolvable unless it is somehow in the financial interest of large companies that the artists get paid. Napster in its original form was taken down as a result of a lawsuit brought by the Recording Industry Association of America. But that was 2001 (let’s forget about the subsequent variants of Napster) and since then the ability to access and share has exploded and would be far more difficult to target than a single company that was being run by a guy who, at the time, was “over the hill.”
I think Alanis Morissette may have gotten it right.