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Legislative Action Aimed at On-campus Peer-to-Peer and “Piracy?”

We can’t and shouldn’t forget that Representative Ric Keller told us during the March House Judiciary Subcommittee on Courts, the Internet and Intellectual Property hearing on campus peer-to-peer and “piracy” that “the hammer’s comin’.” Shortly after that hearing, Keller, who is also the senior Republican on the Subcommittee on Higher Education Lifelong Learning & Competitiveness, introduced the Curb Illegal Downloading on College Campuses Act of 2007. It’s clear that at least one member of congress is serious about addressing (and forcing us to address) this issue.

In the closing sentence of their March 12 news story about the the American Council on Education (ACE) noted that “it is possible that further discussion of file sharing on campus will be folded into debate of the reauthorization of the Higher Education Act later in the legislative session.” Rumor has it that this may be coming true as the Senate and the House continue to work on the latest incarnation of the Higher Education Act (HEA). Even more foreboding, there may be reconsideration of the current safe harbor protections offered under copyright law; Representative Schiff forcefully and pointedly reminded us in that hearing that Congress wrote the copyright laws and they can change them.

These could be mere rumors. Even if they are true, they have to run a gauntlet through a bitterly partisan congress and make it onto the desk of a president of a different party than the congressional majorities (even though this issue is a bipartisan issue – Keller and Schiff sit on opposite sides of the aisle, for example – making this part of an omnibus bill like the HEA may place it squarely in the domain of partisan politics). We’ve certainly seen enough ineffective action related to the HEA over the past few years to know that it’s far from certain that anything will actually be done. But they appear to be serious this time and getting more serious as the copyright holders continue to press this issue and make our efforts and concerns appear to be hollow. The hammer may be comin’ and it may be buried in the HEA.

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Kevin R. Guidry

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2 responses to “Legislative Action Aimed at On-campus Peer-to-Peer and “Piracy?””

  1. OJ Avatar
    OJ

    If the technology to police student file sharing is there, and the costs are reasonable, there is no legal or ethical reason why the federal government shouldn’t condition the millions of free dollars they give to colleges on a little self-policing. Students today are so used to having free internet access provided for them by universities that they mistakenly think it is some sort of entitlement. Worse yet, many think they are entitled to make copies of copyrighted work! Most (or a large portion) of the illegal downloading is taking place on university-provided internet service, so having the university insist that its students not abuse the privilege by committing crime is a good idea. It is far more cost effective than having government tax dollars spent on ineffectual law enforcement.

  2. Kevin Guidry Avatar
    Kevin Guidry

    OJ, you raise many interesting points in your brief comment. A few of them include:

    1. Is the technology to “police student file sharing” available? That entirely depends on how one defines “police.” It also depends on how one defines “there” (bear with me!). In general, there can never be any software that permits legal uses of copyrighted material while also prohibiting illegal uses. The issues – primarily fair use and copyright status – are way too complicated to define in software or hardware. There certainly is software and hardware available to stop a large majority of illicit peer-to-peer traffic. Leaving aside cost for a moment, the problem with such solutions is their high rate of false positives. For most of us in academia, a high rate of false positives is unacceptable as it stifles innovation, creativity, exploration, academic freedom, and other similar “things” necessary for education to be successful, particularly in a traditional Western, liberal arts context. It’s also worth noting that for some, particularly network administrators, “policing” peer-to-peer isn’t about copyright at all; it’s really about preserving network bandwidth for its intended uses (which presumably are not unlawfully downloading movies and music).

    2. Are the costs reasonable? If we are to believe the testimony offered before Congress, then for many institutions the costs are *not* reasonable. Of course, the costs of employing these services are weighed against other potential costs to arrive at their true cost. Right now, there is little penalty for institutions who take no action in this area. Thus any cost for such a service is a true cost. If, however, there were costs for this inaction (and it appears that some in Congress want this to be the case, even if the cost is a much higher potential liability), then the equation would change and the cost of *not* employing such a service would be higher.

    3. “Students are used to having free internet [and] many thing they are entitled to make copies of copyrighted work!” Indeed. That is the same conclusion that Illinois University’s Digital Citizen Project (who have a shiny new website, I might add!) and others have reached: this is not a behavior developed at college but one taken to college. Therefore, one might ask, why should the burden for changing this behavior fall so squarely on the shoulders of colleges and universities? This is a much, much bigger issue than merely being a college and university issue.

    4. “[Employing these technologies] is far more cost effective than having government tax dollars spent on ineffectual law enforcement.” I don’t follow you. First, barring ongoing changes in the relevant laws, most copyright infringement is civil and not criminal hence there are few, if any, government dollars spent. Second, it would be great if we could have honest and realistic numbers to actually analyze your argument. But I fear this issue is similar to illegal drug abuse: those involved are very biased and very involved in the finances of the current system so it will be very, very difficult to ever get good, honest numbers from either side of the debate.

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