New music rules are needed

Suing college students. Forcing ISPs to rat out customers. Petitioning Congress for unprecedented vigilante powers. Deploying armies of lawyers to sue technology companies. Threatening universities and corporations. Demanding that ISPs disconnect tens of thousands of Internet users. Hiring electronic enforcers to monitor computer users.

None of these efforts by the recording industry has put a single nickel into the pockets of a musician. And none of these efforts has slowed the spread of peer-to-peer ("P2P") file sharing. More Americans have used file-sharing software than voted for the President.

But we are paying a price. Responding to pressure from the entertainment industry, the University of Wyoming is now monitoring and recording all university Internet traffic. One hundred Naval Academy cadets have been disciplined for file-sharing. Investment in innovative P2P companies has dried up. Some members of Congress, addled by a steady diet of propaganda and campaign contributions from the entertainment industries, have suggested that the answer might be to expel, or even jail, college students. Music fans are frustrated and alienated from the musicians they love.

The hysteria over P2P has gotten out of hand. While protecting copyright is a worthwhile endeavor, suing college students will not get artists a penny more in royalties. Conscripting cash-strapped universities to act as muscle for the entertainment industries is absurd. Putting entire universities under constant surveillance is simply unacceptable.

There is a better way.The problem is not P2P file sharing. In fact, file sharing is a remarkable innovation that has enabled a worldwide community of music fans to build the greatest library of recorded music in the history of the world.

The problem is that artists are not getting paid. It is time to address the problem.

The right answer is obvious: We need to collect a pool of money from Internet users, and agree on a fair way to divide it among the artists and copyright owners. Copyright lawyers call this a "compulsory license." It might work something like this: Internet service providers (including universities) might add a flat monthly surcharge to the fees they charge for Internet access. Part of these fees would be remitted to the record labels, while some would be paid directly to the artists (who today frequently are victims of unfair contracts and crooked royalty accounting). The fees would be divided up fairly, based on popularity on the file-sharing networks, measured with sampling methods like the Neilsen ratings that respect our privacy while tabulating the P2P "charts." Having paid the fee, fans could engage in private, noncommercial file-sharing without worrying about being hunted down like criminals.

That's only one possible way to get artists paid; there are many others to choose from. Systems like this are already in place in a variety of other areas. Anyone can record a cover of a song, without having to ask permission from the songwriter, so long as they pay a standard fee per copy they sell. In the cable television arena, cable networks do not have to ask for copyright permissions in order to retransmit over-the-air programming. Instead, they simply pay a fee to those who own the copyrights in the programs. Web-casters, similarly, are allowed to play whatever they like, so long as they pay a fee set by the Library of Congress.

The university environment could be a testing ground for alternative compulsory licensing models. In exchange for standing up strongly for their users' privacy rights, universities could begin negotiating for experimental campus-wide blanket licenses for file-sharing.

After all, the reality is that file-sharing is almost certainly going to remain a fact of campus life. The debate should be about getting artists and copyright owners fairly compensated, not about how many students should be expelled or how to install surveillance equipment on campus networks.

Fred von Lohmann is a senior staff attorney at the Electronic Frontier Foundation (www.eff.org), a membership-supported nonprofit organization that defends civil liberties and free expression in the digital world.