Mistaken Goal: Where Student Affairs & Technology Meet

NASPA and ASJA (the Association for Student Judicial Affairs) are presenting a webinar in October entitled “The First Amendment and Online Issues in Higher Education.”  The abstract:

College and university student use of online technologies and forums can present challenges for student affairs administrators at every level.  The expanding terrain of cyberspace brings forth questions about student conduct, attitudes and freedoms in online forums such as social networks.  Participants of this Webinar will explore how the law applies to administrators monitoring and responding to online student misconduct.

The event is scheduled for October 10 from 1:30 to 3:00 Eastern.  More info, including pricing, can be found on NASPA’s website.

I’m disappointed that the webinar costs as much as it does (early registration would cost me $75 as a student member of NASPA; that’s $75 for an hour-and-a-half webinar!) but I might try to fit this into my schedule and budget.  I would be interested not only in what the presenters have to say about the law but also in what they choose to discuss as a measure of what technology and legal issues are important to student affairs and higher education.

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Late last week, President Bush signed into law legislation to renew the Higher Education act.  There were some faint rumors (sorry, don’t remember where I read them) that he was not going to sign but he has, albeit without any comment.

In connection with the provisions in the law that pertain to online copyright infringement, ACE and EDUCAUSE have put together a few resources that should prove useful.  First is a memo released a few days ago detailing what the next steps in the legislative process will be as the details in these new provisions are fleshed out.  Second is a free webcast scheduled for Thursday August 21, 2008, at 1:00 PM EDT.  No registration is required; more details can be found here under the “HEA Webcast” tab.

Last week, the Chronicle of Higher Ed reported that we are becoming “exasperated” with the RIAA and their actions and tactics.  Shockingly, the article reports that the RIAA is trying a legal tactic that attempts to use an institution’s previous actions against it.  Specifically, an institution that complained in court that it was burdensome to continue to investigate the RIAA’s complaints was told by the RIAA that “everyone else does it” and the institution’s previous compliance was presented as proof that the investigations were not burdensome.  This seems to put colleges and universities in a really bad position because it appears to force them to decide, up front, if they want to comply with every subsequent RIAA notice and demand.  This doesn’t seem right as the RIAA’s argument seems to ignore the issues of scale and changing situations.  It may not have been burdensome to reply to the first few notices; replying to the 100th or 1000th such notice can easily be burdensome.

Like William Patry, I find this all very depressing.

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Rumor around the water cooler is that we may see a vote for the Higher Education Reauthorization Act today. The House of Representatives has passed the Higher Education Reauthorization Act with similar action expected of the Senate very soon. We’ve been following this for quite a while with interest focused primarily on the portion of the act that focuses on peer-to-peer file sharing and online copyright infringement. For those who have not been following this bill or this portion of the bill, the version of the bill that has been negotiated between the House and the Senate requires colleges and universities:

• Educate students
  • Inform them that unlawful online copyright infringement is unlawful
  • Summarize the penalties for violating Federal copyright laws
  • Inform them about the institution’s online copyright infringement policies and disciplinary actions
• Develop plans to “effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents”
• “Offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property”

(The precise language can be found in the bill on pages 221-222 and page 237; be warned that this is a long and somewhat large pdf file.)

The Chronicle and Inside Higher Ed are both covering this story although their coverage is much broader than focusing on this one issue. William Patry, Google’s Senior Copyright Counsel, has blasted the online copyright infringement portions of this bill and I’m sure that there are others who are doing the same if you poke around; Steve Worona has done so from a particularly privileged viewpoint as EDUCAUSE’s Director of Policy & Networking Programs. EDUCAUSE has signed an ACE letter that fulfills Doug Lederman’s prediction from a few days ago that “groups will spend much of the next day or two carefully wording letters that neither badmouth the legislation (and by extension those members of Congress who crafted it) nor endorse it.”

As noted by Patry, the discussion from the participants in the conference meeting that resolved the differences between the House and Senate versions of the bill is very interesting and informative. If you really want to dig into this, the relevant material can be found on page 558 of the relevant report (same document as above, same warning: long and large pdf file). Patry has copied and pasted, with comments and discussion, the relevant material on his blog if you want to avoid digging through the pdf.

It looks like the bill will pass both houses and be made into law so it seems to be time to accept the inevitable and being planning on how work with or around these new laws. It may be worth taking several steps back to view the bill in its entirety as it does appear to do many good things but it’s incredibly disappointing to see once again how money influences and corrupts our legislative processes and participants.

(Updated July 31 at 2151 EST to reflect passage in the House)

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Things are still busy on the copyright front. Among other interesting developments and relevant news:

• The Chronicle of Higher Education reports that lawmakers have reached a compromise on the online copyright infringement language in the Higher Ed Act. According to a draft being circulated by aides, “the compromise adopts the House’s requirement that colleges develop plans to ‘detect and prevent’ illegal downloading of music and videos on campus, including offering alternatives to illegal downloading. But negotiators provided a possible out for colleges, adding the phrase ‘to the extent practicable’ to the language.” So it appears that our concerns have been largely unheard or ignored and we will be expected to fund unproven programs and tools even as we’re severely criticized and chastened for increasing tuition and fees.
• In the past month, many college and university administrators have reported an increase in the number of copyright complaints sent by the RIAA. There has been traffic on some of the listservs and articles in the usual places. Many, including myself, have wondered aloud if there is a connection between this unexpected surge in notices and the ongoing legislative efforts (at the federal and state level) supported and pushed by the RIAA and others. Cary Sherman, president of the RIAA, denies that there is a connection. Given this group’s history of dishonesty and deception I am extremely skeptical of Sherman’s claims. In addition, EDUCAUSE Vice President Mark Luker expressed EDUCAUSE’s position that “counting DMCA notices is a completely inappropriate measure of success in combating infringement and an equally inappropriate basis for comparing the amount of infringement taking place campus-to-campus or year-to-year.” I don’t recall if EDUCAUSE has previously stated this position but I am happy that we agree on this common-sense issue.
• Spurred by the attention stirred up by the increase in notices, the RIAA explained how they “catch” students by using the same software students use to share music online. Their investigative firm, MediaSentry, has automated much of the process although they do not actually download the songs. In addition, the anonymous (WTF?) person who gave the Chronicle of Higher Education a demonstration of the RIAA’s operation said that “the automated takedown notice program we have right now is solely university-focused. We’re trying to make universities aware that they have an issue with peer-to-peer file sharing on their network, and so we don’t send automated notices to commercial ISP’s, I think because they are generally aware that there’s a problem.” That, of course, clearly says that the RIAA doesn’t think that colleges and universities are “aware” of this issue. Either that statement is untrue and the RIAA knows that we take this issue seriously or the world views of these two groups - those who profit off of others’ creativity and creations and those who create and innovate - are so far apart that they are irreconcilable.
• Finally, to step out of the world of higher education and gain a glimpse of these issues from a different perspective, DailyTech reports that the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP) has passed through the House of Representatives almost unanimously (408-11). This bill would create a new cabinet-level position to coordinate “antipiracy” efforts and strengthen many laws related to copyright and its enforcement. This bill has been called “a bill that may be the most outrageously gluttonous IP bill ever introduced in the U.S.” by William Patry and criticized by even the Justice department.

Update: The Chronicle of Higher Education is reporting that Congressional aides are hoping to wrap up negotiations tomorrow (Friday), publish the bill on Monday, name the members of the conference committee on Wednesday, and hold a vote before Memorial Day.  Senator Lamar Alexander (R-TN) is threatening to hold up the bill if “he is not allowed to offer an amendment that would waive some reporting requirements for colleges that agree to other accountability measures.”  Among his many experiences, Alexander was president of the University of Tennessee from 1988 until 1991, so one would imagine that he knows a thing or two about higher education.

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Members of the House and Senate are still wrangling over the two different versions of the bills renewing and “updating” the Higher Education Act they passed this session to bring them into harmony so they can send them to the president to sign into law. Remember that the House version includes language that would institutions to plan to install filtering or other technological measures to prevent online copyright infringement; the Senate lacks this language and only requires that institutions inform students of relevant institutional policies.

Recently, two important groups have taken a public stand on this issue and expressed their feelings to our elected officials:

• About a month ago, the American Council on Education (ACE) sent a pair of letters to the appropriate chairpersons and ranking members (the chairperson is the senior member of the majority party whereas the ranking member if the senior member of the minority party) expressing support for the Senate bill’s language. ACE is the most powerful education lobbying group in the United States and they often act as a coordinating body for other groups; 12 other groups have signed on to these letters, including EDUCAUSE. The letters specifically note that “the House bill would impose new costs and regulatory burdens on both the Department of Education and campuses while doing very little to address the problem” and urge the use of the Senate language of that section of the bill.
• Yesterday, the U.S. Public Policy Committee of the Association for Computing Machinery (ACM) - the U.S. public policy arm of “the world’s largest educational and scientific computing society” - sent their own letter to the relevant persons in the Senate and House. Their roots as a scholarly organization are clear in their letter as they focus largely on problems with network filtering, writing that “a Federal
  policy that promotes or requires filtering will indirectly add to the costs of education and
  university research, introduce new security and privacy issues, degrade existing rights under
  copyright, and have little or no lasting impact on infringement of copyrighted works.” Unfortunately, they do not make a very concrete recommendation other than to say that “universities are in the best position to determine how to address infringement.”

The Chronicle of Higher Education’s Wired Campus blog is doing a pretty good job covering these events as they occur so it might be worth monitoring it for ongoing coverage. Their coverage is not in-depth but it is timely.

I also note that I can not recall any of the student affairs organizations - NASPA, ACPA, etc. - taking a stand on this issue.  It may be legitimately outside of their bailiwick but I’m not entirely convinced of that given the implications for rising costs of education and the close tie this issue has always had with student discipline.  So I’m a bit disappointed to not see any of these groups sign on to ACE’s letters.  If my memory is too short and these groups have taken an active and public stand that I’ve overlooked or forgotten, please let me know!

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I’m sure that everyone interested in this topic already knows that last week the House of Representatives passed H.R. 4137 the College Opportunity and Affordability Act.  This is the legislation that includes a section not only requiring colleges and universities to report to students their online copyright policies but also “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.”  The Senate version of the legislation does not include that language so this will have to be worked out between the House and the Senate before the final bill can be sent to the president.

In related news, it appears that Rep. Berman (D-CA) is stepping down from his position as chair of the House Subcommittee on Courts, the Internet, and Intellectual Property.  He has been a very strong supporter of the music and movie industries.  We can only hope that Berman’s departure will start to bring this subcommittee closer to a balance between protection of copyright and the rights of citizens.

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On Friday, House Democrats introduced “The College Opportunity and Affordability Act of 2007.” Ostensibly intended to “address the soaring price of college” and “ensure [that colleges and universities] operate in the best interests of students and families,” the bill includes the worst provision yet regarding peer-to-peer filesharing. Unlike previous attempts that would have only required the “worst” institutions to adopt technological tools to address and prevent P2P filesharing, this legislation would require that all institutions that receive federal financial aid “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.” Unless I am misunderstanding this proposed law, it appears to be a blatant attempt to force all colleges and universities to pay a fee to the RIAA, MPAA, and others by requiring us to sign up for a service such as Napster or Ruckus (which, I know, is currently free; think that would last long if everyone were required by federal law to sign up to it?).

Other coverage of this proposed bill:

• The Chronicle of Higher Education includes praise for this misguided initiative by the MPAA (”a positive step in educating students and deterring illegal downloads and file sharing on college campuses”) and condemnation by EDUCAUSE (”we’re raising the cost of higher education by government mandate in order to transfer more dollars to the entertainment industry”).
• Inside Higher Ed’s coverage expands on the EDUCAUSE position by quoting them as saying that “Campuses that offer legal downloading services typically must charge a student fee to cover the expense. Taken across all campuses, this practice could represent a transfer of over $400 million annually from higher education to the entertainment industry while raising the cost of higher education.” Although it’s getting a bit old, our research into online entertainment services confirms part of that assertion.
• One of the most damning criticisms of this proposed legislation comes from William Patry, Google’s copyright counsel and one of the country’s leaders in copyright law. Patry asserts that “it is disturbing for the federal government to require educators to be policing enforcement issues for private companies on pain of loss of federal funds.”
• From the technology press come reports from Ars Technica, CNET, Campus Technology, and Daily Tech. In the CNET article, the reporters note that the MPAA has stated that institutions that employ technology to prevent P2P filesharing have experienced significant reductions in copyright complaints, “in some cases going from 50 a month to none.” Once again, I caution that the number of copyright complaints is not an indication of copyright infringement but an indicator of the copyright holder’s willingness to file a complaint as he or she is perfectly free to ignore infringements. Thus the MPAA’s assertion carries little weight unless the measure of success is “we’ll leave you alone - for now” instead of the actual reduction copyright infringement or change in students’ attitudes and actions.

The entire 747-page bill can be found here (1.2 MB pdf) for those who want to peruse it in all of its glory. It’s scheduled to be marked up in committee tomorrow (Wednesday). In addition to sending its own letter to members of the House, EDUCAUSE has once again called on its members to oppose this legislation by contacting legislators.

This is quite depressing. So let’s not discuss the other stupid P2P legislation recently introduced by a small bipartisan group of senators. Luckily, the “Pirate Act” appears to have little chance of passing as even the Justice Department doesn’t seem to be enthusiastic about this attempt to expand their workload to protect private interests.

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In July, those of us interested in technology issues related to higher education were whipped into a frenzy by an amendment to the Higher Education Act proposed by Sen. Reid (D-NV) that would have put a spotlight on institutions that receive lots of notices alleging online copyright infringement by students and required them to adopt technological measures to reduce infringement. Many in higher education opposed this amendment and Reid dropped it rather quickly. Shortly thereafter, the Senate passed their version of the Higher Education Act.

Now it’s the House’s turn to introduce their bills to renew the Higher Education Act. Yesterday, House Republicans unveiled their version of the House bill. It’s a 409 page document but we’ll only concentrate on our narrow, niche interest of technology affecting students.

As Inside Higher Ed has reported, this bill includes one section that is identical to Reid’s contentious and subsequently withdrawn amendment. Specifically, the bill requires that those institutions identified by the Secretary of Education identity each year the 25 institutions that have received the most allegations of online copyright infringement (and a minimum of 100 notices) provide evidence to the Secretary that they:

1. Have notified students on their policies and procedures related to the illegal downloading and distribution of copyrighted materials by students
2. Undertake a review of their procedures and plans related to preventing illegal downloading and distribution to determine the program’s effectiveness and implement changes to the program if the changes are needed
3. Have developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.

This section of the Republican’s bill is almost word-for-word identical to Reid’s amendment. As I see it, the primary difference between this bill and Reid’s proposed amendment are that (a) this section is part of a much larger bill, potentially making it more difficult to focus on or repudiate, (b) the bill is proposed by Republicans, the minority party, whereas Reid;s amendment was proposed by the Senate Majority Leader (and thus a Democrat), and (c) this is a House bill and the House has been much more sympathetic to copyright holders and very unsympathetic to concerns of colleges and universities.

Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education, is quoted by Inside Higher Ed as saying: “Ironically, as drafted the legislation would wrap institutions in an amazing amount of new federal red tape and, at the same time, order the Secretary of Education to study ways to reduce overregulation.” Contradictory political and financial demands are neither new nor unexpected but they take on additional significance when the political demands are of unproven and dubious effectiveness. We can be sure that this portion of the bill, if passed, would increase costs and likely decrease freedom for students on campus but we have no assurances that the required technical means will have any lasting or significant effect on reducing copyright infringement or effecting a change in the ethics, actions, or beliefs of students. As demanded and rewarded by our current electoral system, these legislators are overlooking or ignoring the long-term view in favor of the short-term view that favors financial gain.

Looking beyond this particular section of the bill, other sections address issues of concern or interest to us:

• Fund for the Improvement of Postsecondary Education (FIPSE) funds would be made available for “supporting efforts to establish pilot programs and initiatives to help college campuses to reduce illegal downloading of copyrighted content, in order to improve the security and integrity of campus computer networks and save bandwidth costs.”
• Several sections specifically address distance education, including sections focusing on Title III funding for Tribal Colleges and Universities and Alaska Native and Native Hawaiian-serving institutions and another section mandating the Secretary of Education work with the National Academy of Sciences to “conduct a scientifically correct and statistically valid evaluation of the quality of distance education programs, as compared to campus-based education programs, at institutions of higher education.”
• Many sections include amendments to include or require electronically-distributed information and resources.

I am also slightly amused that several sections of this bill specifically focus on the Department of Education’s College Online Opportunities Locater (COOL) online tool. Not only do many of the recommendations seem to be micromanagerial and overly specific for a federal law but the tool itself was recently revamped and relaunched as “College Navigator.” This is another fine example of the speed with which technologies and technological tools change.

Update: EDUCAUSE has posted some talking points (Word document) for those who wish to contact their representatives and urge them to oppose this bill.

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I’m as settled into my new place and job as I will get so I hope to resume substantive posts soon. In the meantime, here are a few updates on topics previously discussed here and a few quickies:

• Lawsuits against college and university students accused of downloading or sharing mp3s continue and institutions continue to ratchet up the stakes for students accused of copyright infringement. Are institutions really getting more strict about this issue or are those who are instituting harsh punishments simply the ones who attract the media reports? And are they doing it in part to attract those media reports (”Look, we’re trying to do something about this! Didn’t you read about it in the newspaper?”)? Meanwhile, on the opposite side of the issue from the MPAA, the EFF has released a report entitled “RIAA v. the People: Four Years Later” (pdf file).
• Universities and colleges have often (and rightly) complained that most of the congressional attention regarding copyright infringement has unfairly focused on them. No worries. Some in Congress are eager to attempt to do foolish things to regular Internet Service Providers, too.
• One of the threads in our recent discussion regarding Facebook advertisements has focused on a shared desire to more accurately target Facebook users. Either we’re starting to see progress on this front or there were developments of which we were previously unaware (likely both). Not only are there applications built to specifically address this issue, Facebook is working to build this into their own ad system.
• Among the lessons learned from Virginia Tech are many related to communications and technology. In addition to Virginia Tech’s official overview, the Roanoke Times has an overview of Virginia Tech’s internal reviews. Of specific interest is the Information and Communications Infrastructure Group report (147 page pdf). The two main recommendations in the report are to (a) install a “new fully integrated digital campus architecture for all telecommunications functions based on Internet Protocol (IP)” and (b) “make selected research and administrative IT capabilities available to local first responders to improve radio communications capabilities.”

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Two recent activities surrounding online copyright infringement:

First, Senator Reid (D-NV) plans to introduce an amendment entitled the “CAMPUS-BASED DIGITAL THEFT PREVENTION” to the Higher Education Reauthorization Act. If successfully added to the bill, it will require the Secretary of Education to identity the 25 institutions who “received during the previous calendar year the highest number of written notices…alleging infringement of copyright” and “from among [those 25 institutions], those that have received…not less than 100 notices alleging infringement of copyright.” If I understand that correctly, it’s the top 25 list minus any who received 100 or fewer notices (potentially making it a top less-than-25 list).

Those institutions identified by the Secretary must:

1. Provide evidence to the Secretary [of Education] that the institution has notified students on [sic] its policies and procedures related to the illegal downloading and distribution of copyrighted materials by students as required under section 485(a)(1)(P)
2. Undertake a review, which shall be submitted to the Secretary [of Education], of its procedures and plans related to preventing illegal downloading and distribution to determine the program’s effectiveness and implement changes to the program if the changes are needed
3. Provide evidence to the Secretary [of Education] that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property

So we may be mandated to tell students about our copyright policies? We will probably be told to do that anyway but that’s okay. We also have to review our policies and practices? Uh, okay. Then we have to report that the Secretary of Education? That’s a bit micromanagerial… And we have to employ a “technology-based deterrent?” That’s definitely micromanagerial. Not to mention potentially wasteful and ineffective (more on that in a bit). After all, Senator Reid (who apparently can not tell or does not even care about the distinction between copyright infringement and theft) is in the right position to tell us the best ways to go about our jobs! And let’s not forget that those who are accused of copyright infringement are guilty and DCMA notices are an accurate measure of copyright infringement.

Needless to say, many in higher education are opposed to this amendment. The American Council on Education (ACE), Association of American Universites (AAU), National Association of State Universities and Land-Grant Colleges (NASULGC), and EDUCAUSE have asked their colleagues in higher education to contact their senators to oppose this amendment. I will be contacting my senators’ offices on Monday and I urge you to do the same.

Second, there is similar action brewing for commercial Internet Service Providers (ISPs). In a comment to the FCC, NBC Universal has asked that the FCC require that “broadband service providers have an obligation to use readily available means” to stop copyright infringement. It’s not quite the same thing as the Senate Majority Leader proposing a law but the FCC has a broad mandate (some say too-broad and others say that it routinely oversteps its mandate but those are discussions for another day or another blog altogether) so the effect could be the same. The Electronic Frontier Foundation (EFF), a civil rights organization that concentrates on technology-related issues, has joined with other organizations to file an opposition comment.

The actual comment submitted by the coalition was prepared by Public Knowledge, another rights advocacy group who concentrate on technology issues. John Bergmayer of Public Knowledge writes on their website:

Network filters can’t work. Encryption, clever technologies like traffic shaping, and determined pirates can always route around any filtration system, including so-called “deep packet inspection.” Eventually, false positives could outnumber the infringing material that is blocked… Plus, network filters would have zero effect on “sneakernet” transfers (whereby people share burnt media and portable hard drives which each other), which by some measures makes up the majority of file-sharing. They would cripple the Internet for little gain, even to themselves.

I don’t know how to balance what John says above (which resonates very strongly with me) with the knowledge that just because something isn’t 100% effective that doesn’t mean we shouldn’t pursue it (”don’t let the perfect be the enemy of the good”). Much of my own reaction to this issue, and the two developments discussed above, is colored very strongly by the perception that many of the critical issues are being twisted or ignored by the large and well-financed parties whose primary interest is in preserving their cash flow. I struggle to not immediately denounce or dismiss their position or statements but many of them are so blatantly false or twisted (logically, ethically, and sometimes legally) that it’s an immense struggle. It is clear to me, however, that we, not our congresspeople or the Secretary of Education, are in the best position to judge and implement what works best for our campus and our students. That may include technological devices or it may not and they should not be mandated.

Please contact your senators. Let’s not let the RIAA, MPAA, and others micromanage our campuses.

Update: I got one important detail wrong in my original post: the provisions of this bill will only apply to the “Top 25″ institutions identified in the previous year, not all institutions. That doesn’t really change much but I’ve edited the post to get this detail right.

Update 2: Inside Higher Ed’s article describing this amendment and reaction to it is now available. Don’t miss the scathing comment left by Kenneth Green, director of the Campus Computing Project, in the Comments section below the article.

Update 3: Reid has dropped his amendment in favor of a modification (see page 10) requiring institutions to notify students of policies related to online copyright infringement.  We’re not of the woods yet as the real battle is expected in the House but this is a good win for us.

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