Chris Castle is a California attorney who represents clients on music technology and public policy. He wrote this editorial in January 2009 and takes a much needed look at the problems with voluntary collective licensing and ISP taxes. He explores what would happen in a world where suddenly downloading music is free. The main issue he brings up is without any legitimate proven tracking sources, ISPs would basically be providing good guesses on how the fees garnished should be distributed. Other concerns he raises are about file quality, illegitimate lawsuits and the lack of feasibility of the plan in actual implementation. He further comments that the record industry would be exchanging one form of uncertainty for another.

The editorial further accuses proponents of voluntary collective licensing of ignoring the positive results in the billion dollar industry of quality digital content such as Hulu and Itunes which are experiencing successful growth. The author questions how collective funds would be distributed with no good data and the addition of another middle-man pulling money out of artists pockets. Questions are also raised about any promises to not sue ISPs, especially by those who opt-out of collective licensing. ISPs will also face issues related to other content illegally downloaded on their sites like images, movies, etc. and international trade agreements that may be tested.

While voluntary collective licensing on a topical level sounds great, Mr. Carter raises some very legitimate points and the issues that could be present in actual practice. ISPs will have to take on additional duties and are vulnerable to attack for participating as a middle-man whether it be voluntarily or involuntarily. Consumers may also be at risk in a world where authorized and unauthorized works are at their fingertips with no clear ability to distinguish between the two. If this is the case, lawsuits may continue unabated.

This is The Songwriters Association of Canada’s proposal for monetizing file sharing of Canadian music. It lays out a voluntary collective licensing scheme similar to that proposed by the Electronic Frontier Foundation. The plan highlights its unobtrusive nature which will basically let consumers continue to download music as they wish but remove the legal risks and legitimize their actions. Consumers would have unlimited access to the world's music collection both preserving and fostering its growth. The association believes the voluntary collective licensing method will usher in a "Golden Age of creativity."

The background of the proposal provides some interesting statistics on music downloading. The estimate 98% of all music is shared and only 2% is actually purchased obviously indicating that sharing is the preferred method of the public at large to access music. The proposal also argues that legalizing file sharing would increase the amount of high quality virus-free music available as only 6mm of the 100mm recordings created are available on legal sites. Legitimizing file sharing will hence increase society's access to all music promoting the arts. It will also answer the most important dilemma: compensation for creators.  

The proposal is an amendment to the current copyright act instituting collective licensing and the payment by consumers of a monthly fee on internet and wireless accounts. This would basically be a government tax but with an opt-out option. Consumers could sign documentation stating they will not share files and face penalty for breaking their agreement. Creators could also opt-out. The proposal would not only benefit consumers, but also ISPs and the music industry. ISPs would receive an administrative fee and record companies would finally receive compensation for file-sharing. The collective would be responsible for tracking music file sharing and distribution of royalties and could be outsourced to firms currently doing similar work.

Overall, the system seems very reasonable and a solution to the secular downward trend facing the record industry. The proposal is broad in its strokes, but it is the details of voluntary collective licensing that make it difficult which are not addressed. Issues such as how royalty streams are fairly distributed, misuse for non-music materials, cheating by artists, impact on record companies and current providers of legal file sharing are not fully tackled. Still the proposal takes the next steps necessary to move the method forward.