Congress is Unhappy With Higher Ed’s Copyright Infringement Activities

The written testimony and video of today’s Congressional An Update – Piracy on University Networkshearing have been posted online. The video is pretty low quality Real video but it’s there and I appreciate the quick response on the part of the Congressional staffers responsible. The witnesses (with links to their written testimonies) were:

  • Jim Davis, Associate Vice Chancellor for Information Technology of the University of California Los Angeles
  • Gregory J. Marchwinski, President and Chief Executive Officer of Red Lambda
  • Cary H. Sherman, President of the Recording Industry Association of America (RIAA)
  • John C. Vaughn, Executive Vice President of the Association of American Universities

The general tone of the hearing was one of disappointment on the part of Congress. They are unhappy with our perceived lack of progress addressing this issue (Keller (R-FL): “The hammer’s comin’.”). In particular, they are unhappy with the lack of progress of the Joint Committee of the Higher Education and Entertainment Communities.

This hearing largely focused on the available technologies to mitigate copyright infringement on college and university campuses. The points made and questions asked by the congresspersons revealed several fundamental misunderstandings of the technology and related issues. Congress was emphatic in their belief that not only should we be doing something (Coble (R-NC): “The ability to do something is not commensurate with the right to do it. And those who have the ability to prevent such behavior have a moral, ethical, and – I believe – the legal obligation to do so.”) but we are not doing enough.

Representative Berman (D-CA), chairperson of the subcommittee holding the hearing, opened the hearing by stating: “There is little debate about piracy’s devastating impact on the economy.” Really? There’s certainly debate about the impact of copyright infringement, particularly the nature and amount of the impact. We don’t all accept the biased word and calculations of the copyright holders but we shouldn’t be surprised that Hollywood’s representative (Berman represents California’s 28th district) takes such a strong stand on this issue. But I think everyone can agree that lots of people are breaking the law and it’s having a negative financial impact on many copyright holders even if we disagree on the particulars.

The topic that seemed to confuse the congresspersons the most is a belief that there really is a magic bullet technology that can detect copyright infringement on a network while respecting privacy and preserving academic freedom. Several members even asked about watermarking technology and seemed to believe that technology is a promising solution. I don’t know why none of the witnesses explained that this is a problem that technology can not solve. In a most basic sense, copyright law is too nuanced for a computer program to tell the difference between authorized and unauthorized distribution. Between legitimate purchases, time and space shifting, and fair use, computers don’t stand a chance of being able to accurately tell the difference between legal and illegal file transfers. Further, as mentioned at least once by a witness, this is an arms race we can’t win. Once files are encrypted, packet inspection becomes impossible. We can rely on other techniques but it’s an arms race and there are a whole lot more smart students than there are talented network admins. One of the congresspersons even read the sales literature of some new network technology that sounded like magic and he appeared to but it hook, line, and sinker.

One issue raised a few times is a report on file sharing on college campuses by the Government Accountability Office (GAO). The GAO has not publicly released the results of their survey but apparently only half of the institutions contacted participated. Respondents were not promised confidentiality and results were not promised to be reported in the aggregate. In other words, individual institution’ responses were to be reported and linked to the respondents. Not only were congresspersons unhappy with this response rate, they also asked if institutions would respond to another survey (“with conditions” i.e. perhaps promise confidentiality this time).

Some of the proposals floated by the congresspersons in this hearing are quite scary. I don’t know how many of them were idle speculation intended to scare the witnesses and higher education. Berman said that the current law isn’t giving institutions enough incentive to act so he might have to investigate changing the exemptions given to universities under copyright law and add conditions to those exemptions. Similarly, Schiff (D-CA) said that congress could narrow safe harbor by requiring best effort or technology designed to address this problem since some institutions are not taking adequate action. He further asked witnesses what they thought about empowering local law enforcement to act on copyright issue. Jackson Lee (R-TX) agreed with Sherman that institutions haven’t done enough and said that if institutions were to charge students a fee for music it might be a “stop-gap” to legislative fixes.

Several congresspersons emphasized their belief that colleges and universities have a duty to teach citizenship and ethics to undergraduate students. Rep. Sherman said in his opening statement that “Business ethics education starts with undergraduate education. I believe that the leaders of the WorldCom and Enrons of the future will be educated at those schools that deliberately facilitate the theft of intellectual property.” Feeney (R-FL) began his questioning by noting that citizenship and character-building are an important part of college; he then compared institutions that do not enforce their policies with China and their lack enforcement of intellectual property laws (which is a bit extreme but the point about institutions failing to enforce their own policies is a good one and was repeated a few times by different people).

Sherman was asked how the RIAA decides to sue a student and if warnings are issued to the student and university beforehand. A very similar question was asked on Wednesday during the copyright-related EDUCAUSE Live! presentation. Unfortunately, Sherman danced around the topic and failed to provide an answer beyond “we send lots of DMCA takedown notices.” However, another point Sherman visited a few times was an excellent one. He once presented it by saying: “The transition from physical to digital has completely altered the way we live our lives. Shouldn’t these changes be reflected in schools’ message to students? Colleges are charged with educating our citizens. Isn’t it essential they prepare them to use appropriately the technology that will fill their lives?” He’s right – we should be doing more to recognize the shifts taking place and addressing them.

Concrete actions or requests described by Berman throughout the hearing included (a) a request that the MPAA release a list similar to the “Top 25” list recently released by the RIAA, (b) a request that the RIAA (and presumably the MPAA) release an updated list in 6 months to see if the list has changed, and (c) another hearing in 6 months to gauge progress, particularly related to the forthcoming recommendations by the Joint Committee and the subsequent adoption of those recommendations. As already noted, several congresspersons indicated a strong interest in forcing higher education to “deal with” this issue and do so quickly. Their patience appears to be running out.

Update: The Chronicle’s technology blog has a similar article about this hearing.







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