Category Archives: Legislation

Just Released: EDUCAUSE Research and Implemention of Copyright Education Laws

Three documents have been released over the past couple of days that are important and interesting:

  • The ECAR Study of Undergraduate Students and Information Technology, 2009 is the latest report from EDUCAUSE’s research arm focusing on undergraduate students and their use and perceptions of technology.  It’s always a well-done study and EDUCAUSE makes the full study (2.7 MB pdf) freely available to everyone so you should take a few minutes to glance over at least the Key Findings (330 KB pdf).
  • The EDUCAUSE Core Data Service Fiscal Year 2008 Summary Report is another report released by EDUCAUSE this week.  As the name implies, it’s a summary of results from the last round of data collection in the Core Data Service, EDUCAUSE’s database of educational technology information.  This document is one of the best (and often the only) publicly-available empirical source of information on technology in higher education, particularly if you’re looking for campus-based statistics such as how much money is spent on technology, how many people are employed to support it, and what kinds of practices and technologies are being used.
  • The Department of Education has released its final rules (2.12 MB pdf; search for “copyright” to find the specific areas of interest) specifying how to interpret the laws passed this summer requiring (Title IV-participating) colleges and universities to actively combat online copyright infringement.  At first glance, the final rules do not appear to differ from the proposed rules.

I hope to find time to dig into all three of these documents in the next couple of days.  I recommend that you do the same.

Guidance on Higher Ed P2P Laws Nearly Finalized

The Department of Education is close to issuing final guidance on the recently-passed laws that require colleges and universities to take action about online copyright infringement. On Friday, August 21, the Department issues its final “Notice of proposed rulemaking.” One of the final steps in enacting a law, these proposals are the result of public hearings and internal and external discussions with representatives of the affected groups. In essence, the Department of Education is telling us how they’re going to require us to comply with the new laws and giving us all one more chance to comment.

The section related to online copyright infringement is entitled “Peer-to-Peer File Sharing and Copyrighted Material (§§ 668.14(b) and 668.43(a))” and it begins on page 13 of the document linked above. For those who have been following this, there aren’t really any surprises. For those who have not followed this, here’s a brief summary of what colleges and universities will have to do:

  • “[Develop and implement] written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network without unduly interfering with the educational and research use of the network.” This plan must include (a) “one or more technology-based deterrents,” (b) a way to educate the community about copyright, (c) disciplinary procedures, and (d) assessment procedures.
  • “To the extent practicable, offer legal alternatives to illegal downloading.”
  • Periodically review the alternatives available and make the results of the review available to students.

So let’s review what is new (or at least new to me):

  • Related to the requirement that we inform students of copyright law, the Department of Education “will work with representatives of copyright holders and institutions to develop a summary of the civil and criminal penalties for violation of Federal copyright laws” that we can use in our educational efforts. That’s a curious statement and it will be interesting to see what comes of this. Many players in the copyright industry have developed educational materials and they have been uniformly dismal and incredibly one-sided. Many institutions have, of course, developed their own materials so it will be interesting to see if the Department collects materials and attempts to integrate them or how they will approach this. The idea of developing model language and materials is good but the execution is where it may get tricky.
  • The discussion of the proposed rules makes it clear that the Department believes that institutions can and must strike a balance between combating online copyright infringement and other priorities such as network security and research purposes. Moreover, that the proposed rules give institutions some discretion in how they go about striking this balance doesn’t mean that institutions can intentionally strike a weak balance to avoid combating online copyright infringement.
  • The discussion also briefly discusses the negotiations that took place regarding “student” v. “user.” Some sections of the proposed rule only apply to students or perspective students whereas other sections are intentionally applied to users, a much broader group of people. There was even some discussion about whether some of the provisions should be extended beyond students to include employees but the Department doesn’t make such extensions in this proposed rule. I don’t even know if the Department could make such extensions; as I understand it these proposed rules are supposed to interpret the law such that institutions can comply with the law, not go above and beyond to make new laws.
  • It’s been a few months since I’ve thought about this legislation so I had forgotten about the requirement that institutions employ at least one “technology-based deterrent.” The discussion that accompanies this proposed rule making and the discussion that accompanied the legislation (The Statement of Managers in the Conference Report for the HEOA) lay out four categories of technology-based deterrents: (a) bandwidth shaping, (b) traffic monitoring, (c) accepting and responding to
    DMCA notices, or (d) a commercial product designed to reduce or block illegal file sharing. The discussion in the proposed rule making says that institutions can “effectively combat the unauthorized distribution of copyrighted material using only one of the four types.” That’s an empirical claim and I would like to know how that conclusion was reached.
  • Finally, the discussion indicates that there was significant disagreement about how institutions would be required to evaluate their copyright infringement plans. The proposed rules leave it up to institutions to determine how best to evaluate their plans, an arrangement commonly sought between the federal government and colleges and universities (“We won’t tell you what to do but you have to know and you have to be able to prove that you’re doing it well!”).
    The discussion goes on to lay out some examples of acceptable evaluation criteria. Some criteria might be process-based and focus on the process an institution has developed for combating online copyright infringement. Other criteria might be outcome-based and focus on more direct measures. Some of the direct measures offered in the discussion are: “‘before and after’ comparisons of bandwidth used for peer-to-peer applications, low recidivism rates, and reductions (either in absolute or in relative numbers) in
    the number of legitimate electronic infringement notices received from rights holders.” Unfortunately, some of those measures are plain bad.

You should read the proposed rules yourself and not completely rely on what I have written. There is more in there than I discussed above and what I find interesting may not be what you find interesting or important. These rules are very far along in the process but you still have a chance to comment on them if you are so moved. I can’t imagine that comments would have much of an impact at this point but if you have something to say then please don’t let my cynicism deter you!

Special thanks go to Steve, Anna, and the rest of the EDUCAUSE staff who have done such a wonderful job keeping us all updated as this legislation has moved forward.

Edit: Steve Worona at EDUCAUSE has posted his overview of this document. In it, he also posts the dates and times of two programs discussing this new law that will be presented at the upcoming EDUCAUSE Annual Conference.

Higher Education and Online Music Post-Ruckus

On Friday, Feburary 6 – just over a week ago – Ruckus shut down its online music service. Napster got out of the college campus business last summer and Cdigix threw in the towel about two years ago. Unless I mistaken, this means that there are no major online entertainment services that specifically cater to colleges and universities. Let’s think about what this means for American higher education.

First, let’s examine exactly what happened with Ruckus. The service was ostensibly shut down without warning but those who were observant saw some signs of potential trouble many months ago. When I briefly posted about Napster’s decision to shelve their “Napster on Campus” program last year, I also wrote:

In mid July, one of my colleagues at another institution posted to a public listserv that Ruckus has new sponsors and is changing direction.  In particular, they no longer have a sales or marketing department which means no more posters or advertising materials sent to participating institutions.

So the claims that this happened completely unexpectedly aren’t quite accurate.  However, participating institutions and students were not given any warning (unlike when Cdigix ceased operations) that the service was going belly up last Friday so the claim isn’t completely off-base.  And the ominous warning signs of last year are certainly cold comfort to students whose music service has suddenly ceased to be and the administrators dealing with this unexpected loss of a service.

It may be of some comfort, however, to know that music with an unexpired licenses (it’s all DRM-protected) should work until the license expires. Ruckus pulled the plug on the authentication servers, similar to what Microsoft and Yahoo! were planning to do last year when they decided to shut down their music stores. Microsoft and Yahoo!, however, relented in the face of intense public pressure and didn’t follow through with their plans to cut off their customers.  I would be very surprised if there were a similar outcry about Ruckus given that Ruckus did not “sell” the music to students and no money actually changed hands.  But this is another example of why some people strongly oppose DRM and its complications. (If you can’t tell, I am very sympathetic to their arguments; I’ve spent a lot of money on mp3s from Amazon and CDs from CDBaby because I value the transportability and compatibility of those formats.)

Second, let’s examine why this happened. According to interviews with The Chronicle of Higher Education, Ruckus shut down simply because it wasn’t making enough money. Fair enough.  That’s why Cdigix and Napster both pulled out of this market. It’s not just services in this particular market that are finding it difficult to compete: TotalMusic, a service created by two of the major music publishers, appears to be having trouble just getting out of the gates. Even satellite radio service Sirius is struggling as they totter on the edge of bankruptcy.

Competing with other services in this crowded market is tough, even if one ignores the unlawful services and means for obtaining music. As mentioned above, I’m a big fan of Amazon’s mp3 service and I’m sure that I’m not alone. Pandora is amazing, legal, and free (and quite popular among my friends and coworkers). MySpace is downright venerable and still a great way to discover and listen to music. There are thousands of other services.

The presence of these alternative services raises the question: Exactly how much impact does the closure of these college-specific services have on students?  I would guess that it has little direct impact as many students are likely using these other services. (Yes, I know that I shouldn’t guess as folks like Illinois State have data on students’ music listening habits and practices but I am skeptical of most data in this area as the scene changes so quickly and dramatically).

But this may have a significant impact on higher education institutions and administrators. The legislation passed last year reauthorizing the Higher Education Act included provisions that require institutions to “‘effectively combat’ copyright violations with ‘a variety of technology-based deterrents’ and offer alternatives to illegal downloading.” What does it mean for us when the “alternatives” are themselves drying up and disappearing even as we’re being pushed to adopt them? What does it say about the effectiveness and viability of these services that they can’t seem to survive even when congress pushes us to adopt and support them?

Finally, let’s step away from Ruckus for a moment to take in another fact of the changing landscape. The RIAA announced in December that it would not be filing new lawsuits against students. Instead, they are shifting their focus to working with Internet Service Providers to identify and warn those infringing music copyrights. So far, it appears that the RIAA is keeping its word; no new suits have been filed although ones already in process are still being litigated.

These two shifts – political pressure to adopt services that are disappearing and the cessation of RIAA lawsuits – are dramatic. One of my colleagues at an institution in the Midwest told me that these shifts have completely derailed their extensive and well-known educational campaign. It reminds me of a well-known curse: “May you live in interesting times.”

First Amendment and Online Issues in Higher Education Webinar

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.

Higher Ed P2P Legislation Passed

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.

Higher Ed Act Vote Expected Today

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)

Copyright Update: Higher Ed Act Compromise, DMCA Spike, and RIAA Methods

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 calleda 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.

Congress Still Considering Copyright Issues in Higher Education Act

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!

House Passes Bill Addressing Higher Ed and Online Copyright Infringement

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.

Latest Attempt at Higher Ed P2P Legislation: This Time It’s the Democrats

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.