Against a climate of litigation and DRM, the Electronic Frontier Foundation released “RIAA v. The People: Four Years Later,” a report (PDF) examining the entertainment’s anti-piracy efforts four years after the first P2P lawsuits targeting users.

The 25-page report -- which includes nine pages of citations -- covers broad territory, chronicling the record industry’s various legal campaigns and why each one has failed. Starting with the RIAA’s early attempts to “sue the technology,” the EFF argues that each successive attempt to curb piracy with litigation has no effect at best and, at worse, drives piracy even further underground: “In response to the RIAA lawsuits, many filesharers are beginning to opt for new file sharing technologies that protect their anonymity,” the EFF writes, “[and] infiltrating these private P2P circles is much more difficult than simply trolling public P2P networks.”

Legitimate downloading services do not escape the EFF’s analysis, either. Referring the DRM-encumbered downloads from stores like iTunes, the EFF writes: 

“While these restrictions, when considered in a vacuum, may strike some as reasonable, they make for a less-than-attractive carrot when dangled in front of music fans used to the unencumbered MP3 files they find on P2P networks. At the same time, the DRM technologies have not succeeded in keeping any “protected” songs off the Internet. In fact, the existence of these restrictions gives otherwise law-abiding customers a reason to seek out P2P channels when their legitimate expectations are frustrated (after all, these are the customers who paid for the music they could have obtained for free!).”

Interestingly, the EFF seems to feel that illegal file sharing and P2P piracy may actually be in a state of regression: with the dropping costs of high-capacity storage media, friends and social circles have returned to swapping CDs instead of downloads; with the cost of optical media dropping, this is easier than ever. Moreso, users are not just swapping CDs, but may also be trading hard drives filled with music, allowing pirates to trade files at a rate faster than P2P networks. 

The report ends with remarkable proposal: rather than continuing lawsuits against its own customers, the EFF proposes a “voluntary collective licensing scheme” not unlike the royalties systems used for performance venues, radiostations, and restaurants. Essentially, P2P filetrading would be legal if the trader paid a monthly fee:

“The music industry forms one or more collecting societies, 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 rightsholders based on the popularity of their music. In exchange, file sharing music fans who pay (or have their ISP or software provider or other intermediary pay on their behalf) 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 P2P software, the more rapid the innovation and improvement. The more freedom for fans to upload what they care about, the deeper the catalog.”  

The concept is not new, however, as companies like Napster have already done it for a few years now with its “unlimited access” rental program, where consumers have free access to a large library provided they keep paying the monthly fee. The key difference between the EFF’s scheme and rental services, however, is that users, not rightsholders, retain control over the files downloaded, the software used for playback, and the means of acquisition; a stark contrast to the “walled gardens” that permeate the digital music market of today.

According to Ars Technica, the idea has already been passed around by EFF attorney Fred von Lohmann at a Beverly Hills DRM conference last spring. The labels refused, citing that consumers would “pay exactly once,” download everything they wanted, then immediately cease all future payments.

"This is about money, not morality," says von Lohmann. "With a blanket licensing solution, the RIAA can call off the lawyers and the lobbyists, and universities can get back to education instead of copyright enforcement."