Whither due process?

We’re all struggling with copyright infringment and our students’ changing views of and relationship with copyright. Although there are still some who have not made the necessary and proper investment in the equipment, training, and skills necessary to deal with most of the bandwidth issues (with a tiny handful throwing in the towel completely and outsourcing), most of us are doing okay except for the occasional blips and never-ending game of small-time “whack a mole.” Some (many?) have given up or never attempted to classify network traffic and instead give each resident a quota or percentage of the available bandwidth. Data on these particular practices are available but they’re not my focus today. The point is that the technical issues are largely black-and-white and most are solveable or already solved.

But the legal and ethical issues are unsolved and largely unsolveable. And I want to focus on one specific legal and ethical issue that I believe has been overlooked as colleges and universities have implemented their policies regarding and reactions to students’ alleged copyright infringement: due process.

Based on my experiences, interactions with others, and informal research, it appears to me that very few (if any) institutions afford their students due process when a student is accused of copyright infringement. I believe this stems from two phenomena:

1. The actions that most institutions take when a student is accused, via a DMCA takedown notice, of copyright infringement are naturally motivated almost entirely or in large part because of the DMCA. Although some have tried to argue that the safe harbor provisions in the DMCA don’t really require institutions to do *anything*, I think most of us agree that the DMCA is pretty clear that we do have take some actions. However, few IT professionals are well-versed in the law (we even invented a well-used abbreviation to remind one another that “I Am Not A Lawyer”: IANAL). Even many of our legal counsels are not well-versed in copyright. I don’t blame either of those parties for not knowing the intricacies of this one branch of law but that lack of knowledge and familiarity engenders the most conservative of reactions and policies. It also encourages us to focus on this one issue without taking into account the larger context and history (because we don’t *know* the larger context or history – we’re unfamiliar with this, right?).
2. At many institutions, these policies are crafted and enforcement takes place without meaningful (or *any*) input from student affairs administrators, including those familiar with similar legal or educational situations. In the specific case of copyright infringement, librarians or other professionals (at my current institution, our copyright “experts” work in Print Services where they help faculty obtain clearance for material to be used in course packets) may also be qualified to provide guidance. In short, although IT or ResNet may bear the brunt of this problem – see the traffic flow, receive the DMCA takedown notices, and track down the student associated with the reported IP address – there are many skills and areas of knowledge necessary to effectively and ethically confront this particular problem that IT professionals may not (and often do not) possess.

So what this usually results in is an automatic presumption of guilt for students who are named or whose computer is linked to a DMCA takedown notice. Nevermind the legal requirement that those who are accused of copyright infringement via a DMCA takedown notice must be affored the opportunity to file a counterclaim, a requirement that schools may or may not afford students or even inform them. The concern I have is that institutions do not afford students due process and assume they are guilty of copyright infringement merely because someone else has accused them of it. It doesn’t matter that most of the students *are* responsible for the alleged copyright (not “guilty;” this is often a civil issue – another complication to be addressed at a different time). Let’s also ignore the immense ethical and legal problems that many of these large copyright holders have encountered. Right now, I don’t even care that due process a legal principle with many years of history and significant case law. It’s an ethical imperative that we not assume our students are unethical or criminals based on the unchallenged word of an interested third-party.

If we take someone else’s word over our students with no investigation or affording our students any due process then we’ve already lost our students and failed to meet this challenge. Make no mistake – this is a much bigger issue than just songs and movies. But that’s where it has started and we meet this challenge one student at a time. If we treat them like automatically-guilty criminals then they’ll behave like criminals. How about we try treating them like adults, responsible for their own choices but also caught up in a much larger and morally ambigious situation? We have legal priniciples and guidelines to follow but we also have obligations as educators and mentors.