Share and share alike
File sharing gets artistic license.

By Ren Bucholz

RECORD LABELS ARE suing preteens for piracy. The makers of Kazaa spike it with adware from their South Pacific hideout. Congress is sure terrorist child pornographers are selling heroin over the Internet. The file-sharing wars are icky, but they could be over by the next season of The Sopranos. And the best part? Artists might actually get paid.

I'm not talking about reproducing Wilco's coup, or using peer-to-peer (P2P) to advertise for concerts. I'm talking about money that comes in regularly, paycheck-style (if people download your music, that is). This radical change will be made possible by three things in 2005:

1. The Supreme Court rules on P2P For better or worse, the biggest legal fight over file sharing will be finished by next Christmas. The Supreme Court is scheduled to decide whether makers of P2P software – and by extension other technology makers – are responsible for the sins of their customers. When its opinion comes down next fall, it will tell us what Napster's demise never did: whether or not it's legal to make and distribute file-sharing software. This won't stop the record labels from continuing to sue anything with a heartbeat and a DSL line, but that news will look silly next to the fact that ...

2. File sharing continues to soar The Recording Industry Association of America has sued more than 7,000 alleged file sharers since 2003, but P2P traffic has actually increased. By some counts, 60 million Americans have tried file sharing. New P2P programs are released faster than J.Lo can get engaged. There's no reason to think these trends won't continue or increase. The year 2005 will be the "best year ever" for P2P, and the medium's continued popularity means ...

3. Artists look for plan B When it becomes clear that the RIAA's slash-and-burn campaign hasn't stopped file sharing, musicians will start to wonder if there's a better way to move forward. Would it be possible to create a system in which P2P joins CD sales, concert revenues, and radio licenses as another way to pay the bills? The answer is yes, and the technology is finally available to make it happen. The trick is to make it feel free to the public while collecting money for creators.

Sound impossible? Consider this: radio listeners don't pay a cent for over-the-air broadcasts, but artists get paid when their songs are played. Radio stations achieve this by purchasing blanket licenses from songwriters' unions known as "performing-rights organizations." These organizations then turn around and distribute the money they collect to artists. The problem is that the division of payments is based on statistical sampling, DJ diaries, and dumb luck. If a DJ plays a song 20 times but never during a sampling period, it's more than possible it will be missed and the songwriter won't get paid.

If we apply this model to file sharing, however, it could actually be fairer to artists than today's radio licensing. On the air, accurate sampling is prohibitively expensive. On the Net, it can be passive and cheap, thanks to a technology called "audio fingerprinting." It works very much like your geeky friend who used to DJ in college: every time the DJ hears a familiar song, he or she can't help blurting out the name. Companies like Audible Magic make network appliances that recognize millions of songs, and these boxes can listen to music all day long. Stick enough of them at the Internet's major crossroads, and you'll have a pretty accurate idea of what the kids are listening to. And once you know what's being traded, you can distribute the money fairly.

Didn't I mention that there will be money? It could even be a lot of money. In 2001, "Original Recipe Napster" offered major record labels $1 billion in exchange for licenses to trade music. That's more than 10 times what Apple's iTunes Music Store grossed last year. If every American who has tried file sharing added $5 a month to his or her Internet service bill for the right to share music – without fear of lawsuits – it would raise another $3.6 billion a year. You could even imagine universities buying licenses just to ward off record label lawyers. Some are already paying tens of millions to bring Napster 2.0 to campuses, and that doesn't even protect their students from lawsuits. That's a lot of money, and artists should be plotting to get a piece.

There will be kinks. New rights organizations will emerge, or old ones will have to take on new roles. Artists will have to organize and stand up to the major labels' "broken record" of lawsuits. But it's a model that makes sense for musicians and fans alike, and 2005 is the year to make it happen.

Ren Bucholz is an activist with the Electronic Frontier Foundation.