Electronic Frontier Foundation (EFF) offers an opt-in plan for legal file sharing. This is a very helpful step down an inevitable path:
- The current battles surrounding peer-to-peer file sharing are a losing proposition for everyone. The record labels continue to face lackluster sales, while the tens of millions of American file sharers—American music fans—are made to feel like criminals. Every day the collateral damage mounts—privacy at risk, innovation stymied, economic growth suppressed, and a few unlucky individuals singled out for legal action by the recording industry. And the litigation campaign against music fans has not put a penny into the pockets of artists.
We need a better way forward.
The Premises
First, artists and copyright holders deserve to be fairly compensated.
Second, file sharing is here to stay. Killing Napster only spawned more decentralized networks. Most evidence suggests that file sharing is at least as popular today as it was before the lawsuits began.
Third, the fans do a better job making music available than the labels. Apple's iTunes Music Store brags about its inventory of over 500,000 songs. Sounds pretty good, until you realize that the fans have made millions of songs available on KaZaA. If the legal clouds were lifted, the peer-to-peer networks would quickly improve.
Fourth, any solution should minimize government intervention in favor of market forces.
The Proposal: Voluntary Collective Licensing
EFF has spent the past year evaluating alternatives that get artists paid while making file sharing legal. One solution has emerged as the favorite: voluntary collective licensing.
The concept is simple: the music industry forms a collecting society, which then offers file-sharing music fans the opportunity to "get legit" in exchange for a reasonable regular payment, say $5 per month. So long as they pay, the fans are free to keep doing what they are going to do anyway—share the music they love using whatever software they like on whatever computer platform they prefer—without fear of lawsuits. The money collected gets divided among rights-holders based on the popularity of their music.
In exchange, file-sharing music fans will be free to download whatever they like, using whatever software works best for them. The more people share, the more money goes to rights-holders. The more competition in applications, the more rapid the innovation and improvement. The more freedom to fans to publish what they care about, the deeper the catalog.
The Precedent: Broadcast Radio
It has been done before.
Voluntarily creating collecting societies like ASCAP, BMI and SESAC was how songwriters brought broadcast radio in from the copyright cold in the first half of the twentieth century.
Songwriters originally viewed radio exactly the way the music industry today views KaZaA users—as pirates. After trying to sue radio out of existence, the songwriters ultimately got together to form ASCAP (and later BMI and SESAC). Radio stations interested in broadcasting music stepped up, paid a fee, and in return got to play whatever music they liked, using whatever equipment worked best. Today, the performing-rights societies ASCAP and BMI collect money and pay out millions annually to their artists. Even though these collecting societies get a fair bit of criticism, there's no question that the system that has evolved for radio is preferable to one based on trying to sue radio out of existence one broadcaster at a time.
Copyright lawyers call this voluntary collective licensing. The same could happen today for file sharing: Copyright holders could get together to offer their music in an easy-to-pay, all-you-can-eat set. We could get there without the need for changes to copyright law and with minimal government intervention.
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