Mistaken Goal: Where Student Affairs & Technology Meet

It’s instructive to step outside the world of higher education to see how we’re viewed from the outside. Sometimes it’s enlightening and sometimes it’s just entertaining.  But it’s always important for us to know how those outside higher education (potential students, alumni, parents, legislators, community members, etc.) view us and our actions.

Stanford University has instituted a re-connection fee for students who are the target of a DMCA notice. In general, the idea of charging a reconnection fee after a student has violated a policy is not new; over 2 years ago, a handful of respondents (8%) to the 2005 ResNet Survey (pdf file of the results of Section 6 of the survey) indicated they charged such a fee. Ray Beckerman received a copy of the notice that Stanford sent to its students and posted it in his blog under the heading “Stanford Adopts Policy: Assume RIAA is Right.” Slashdot also posted a link to the notice but under the slightly more innocuous title “Stanford To Charge Reconnect Fee For DMCA Notices.” The Chronicle of Higher Education allowed Stanford to respond in their story on the new policy. The Chronicle noted that “Stanford would give students ample opportunity to contest infringement notices and would waive the fines for students who received ‘problematic’ complaints.” Lauren Schoenthaler, a lawyer for Stanford, said that they are “not out there trying to add insult to injury by charging people who receive bogus complaints.”

It’s worth reading through the comments in Ray’s blog posting and the Slashdot story. Yes, the title for Ray’s posting is misleading and inaccurate. Yes, many or most of the comments are off-base, knee-jerk, and ignorant of many of the basic facts of this specific situation and the general situation. At the end of the day, however, that’s how people are reacting and what they are thinking and it’s vitally important that we understand and keep abreast of those reactions and thoughts.

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I am reading through Lawrence Lessig’s 2006 book Code 2.0 (links to purchase the book or download it for free are on the official website). One of the ideas presented in this book is a very, very brief outline of Lessig’s “New Chicago School,” a theoretical framework for understanding the forces that seek to regulate behavior. My thoughts are not fully-formed yet but I strongly suspect this framework will be very useful and important to me as I continue to work to understand the current and continuing discussions and actions related to online copyright infringement.

As outlined in Chapter 7 of Code 2.0, an appendix in Code 2.0, and an article in a 1998 issue of the Journal of Legal Studies, this framework posits four modalities that regulate behavior:

• The Law
• (Cultural) Norms
• Markets
• Architecture (or, in the context of the Internet, computer code; the equivalence of law and code (expressed as “code is law”) is the primary argument of Code 2.0)

These forces all act together to regulate behavior. They often work in opposition or differently although they can work in parallel. Lessig gives examples such as wearing of seatbelts, discrimination against the disabled, and regulation of illegal drugs to illustrate how these four forces not only interact to regulate behavior but also interact to influence one another, a kind of second order regulation.

My hope is to apply this framework to help make sense of the current copyright infringement issue with which we find ourselves struggling (or ignoring, if our accusers are to be believed) as students download and distribute music, movies, and other copyrighted works using networks ostensibly intended for academic use. A quick search shows that others have already applied this framework to the larger peer-to-peer issue. If I’m late to the game, that’s okay with me; I would be happy to find that others have already done the heavy intellectual lifting. However, I suspect that this framework hasn’t been applied in the specific areas in which higher education may be interested. For example, the “Norms” modalities seems to be the one which we are most being pressed to change by somehow creating an atmosphere where students are pressured or simply expected to not violate copyrights similar to the atmosphere we seek to create regarding other negative behaviors. The “Architecture” modality seems to be another we are being pressed to modify as we are being pressured to purchase products that seek to identify and limit users’ ability to use the network to use peer-to-peer technologies.

Another interesting thread in Lessig’s writings is a discussion of the temporality of these modalities. In other words, when these modalities regulate behavior is an important distinction between them. For example, architectural constraints typically regulate behavior ex ante (before) a behavior can take place by making that behavior impossible. Legal constraints, on the other hand, typically regulate behavior ex post (after) a behavior has taken place by punishing someone who has engaged in the regulated behavior. Further, there is a difference between the subjective and objective effects of these modalities. In the appendix to Code 2.0, Lessig casually mentions that “for those who are fully mature, or fully integrated, all objective constraints are subjectively effective prior to their actions. They feel the constraints of real-space code, of law, of norms, and of the market before they act.” This observation is what ties it all together for me as we’re now back squarely in the realm of student development theory as that is what best informs us when, how, and why students become “fully mature” and able to integrate these constraints into their behavior.

Lessig also mentions that “laws and norms are more efficient the more subjective they are, but they need some minimal subjectivity to be effective at all. The person constrained must know of the constraint.” In other words, if anyone is trying to prevent students from using peer-to-peer technologies or violating copyright they must make students aware of those restraints beforehand if they’re to be effective. Although their reasoning is not as sophisticated as Lessig’s, that’s one of the reasons the RIAA issues press releases when they sue students or pursue other legal actions. This point is also echoed in Siemens and Kopp’s 2006 NASPA Journal article describing the higher effectiveness of programs that use multiple avenues to make students aware of institutional copyright policies.

I apologize if my thoughts are not terribly organized or comprehensible.  I am rather excited to have been exposed to this conceptual framework and I have high hopes that it will help me make sense of these issues.  I hope to return to this topic at a later point, perhaps in a more formal paper.

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The past few days have been busy on the copyright front:

1. Members of Congress have sent a detailed questionnaire to 19 (or 20) institutions asking about their policies and practices related to students’ alleged online copyright infringement. The questionnaire is preceded by an unambiguous statement of disapproval of current policies and practices coupled with statistics of the damage supposedly done by file sharing (they’re based on shaky and extremely biased “research” but Congress has bought it all - hook, line, and sinker). These institutions are now in a very bad position as they are under a very bright spotlight. The questionnaire is quite biased but an institution that ignores questions, supplies evasive answers, or declines to respond will likely place itself in a very unfavorable political position. The questionnaire contains at least one really interesting question asking about cable television in residence halls and how it is funded; presumably this question is aimed at exposing the hypocrisy of institutions that refuse to pay for online entertainment services but are happy to pay for cable television. It’s a very interesting and relevant question and I am curious to see how institutions will respond.
2. Charles R. Nesson and Wendy M. Seltzer have written an editorial in The Crimson stating that Harvard should be “assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us…deploying our clinical legal student training programs to defend our targeted students [and] lobbying Congress for a roll back of the draconian copyright law that the copyright industry has forced upon us.” Nesson is William F. Weld Professor of Law at Harvard Law School and the founder and faculty co-director of the Berkman Center for Internet & Society. Seltzer is a Fellow at the Berkman Center for Internet & Society and a staff lawyer at the Electronic Frontier Foundation.
3. The RIAA has made good on their promise to sue students who do not take up their offer to settle out of court.
4. Ohio University, named the university receiving the most DMCA takedown notices from the RIAA in their recent Top 25 list, has banned peer-to-peer technology. They claim the ban is working.

Those interested in following these and other updates as they occur are encouraged to monitor Rey Beckerman’s Recording Industry vs The People and The Chronicle’s The Wired Campus blogs.

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