ResNet Symposium: Keynote Address Addresses Institutions’ Ethical and Legal Responses to Students’ Alleged Copyright Infringement

The keynote address on Sunday morning by Jim Gibson (who also presented a pre-conference session on Saturday) focused on the primacy of the university mission in determining institutions’ responses to allegations of students’ copyright infringement. Specifically, the address focused on file sharing and related copyright complaints and DMCA takedown notices.

First, Gibson noted that universities have a special focus as secular, sacred places where:

• disagreement is valued and promoted
• unpopular views are protected
• the primary mission is to produce informed citizenry with knowledge of their rights and responsibilities

Following from this focus are several key values held by universities:

• openness
• respect for the intellect, including treating students as grownups and exercising a willingness to be convinced
• a sense of independence

Gibson asserted that when confronted with a policy question, the university’s primary reaction should be to ask “What does the university mission dictate we do?” In the case of file sharing and allegations of student impropriety, Gibson asserted that education should be the university’s primary response. Since we must maintain a sense of independence, we must not blindly bow to the demands of the copyright holders. Instead, we should embrace a healthy respect for the intellect and not dumb down the issues when discussing them with students. Discussions of intellectual property should be approached as a critical examination of all the issues involved.

Gibson presented the actions of Swarthmore College when their students were sued by Diebold for copyright infringement as example of a very poor reaction not in keeping with the university’s mission. Although the institution praised the students’ “resolve to act on behalf of an open and fair democracy,” it failed to back up those words with the proper actions. For example, it appears that the institution did not even notify the students of their right to respond to the takedown notice with a counter notice.

Specifically, Gibson recommended that institutions:

• notify students of their legal rights when served with any sort of notice
• notify students of their status with the university and its policies
• ensure they are responding in the appropriate manner to DMCA or DMCA-like notices (remember that institutions are not *legally* obliged to do anything other than terminate repeat offenders if the institution is acting as a “mere conduit”)

Following the keynote address, Gibson took questions from the audience:

• What is the copyright holders’ responsibility to improve their own images? Their image is certainly tarnished but their mission differs significantly from our own. In general, Gibson feels very unsympathetic towards students or others sued for copyright infringement. “[Just because] 98% of your friends didn’t get sued doesn’t mean you shouldn’t.”
• How will our search for funding and change to a commodity change our mission? It’s worrying, particularly in the areas of: big athletics, patents, naming rights, and decreasing public support.
• Some corporations who want us to outsource our ResNet programs are using DMCA notices and copyright issues as leverage. In essence, they are telling us that we can outsource those issues to them just as we can outsource our network and support. What are your thoughts? It depends on the level of involvement.
• What is your take on the potential congressional mandates to use particular technologies to address these issues and shift the burden of enforcement away from the copyright holder and onto the university? Gibson was not worried about sweeping changes to the DMCA or copyright law. Universities are “low hanging fruit” but large commercial ISPs know that if they “let us go” then they will be next. In other words, we (should) have large allies. However, university-specific provisions in the law are a distinct possibility.
• Will copyright owners be able to piggyback on CALEA or similar law enforcement and national security laws? Maybe. Our “reasonable expectations of privacy” (a key legal phrase and test when considering Fourth Amendment issues) change over time, particularly in response to police powers and practices. In other words, we often answer the question “What can the police do?” by asking “What do the police do?” and that is obviously very problematic and eroding of our expectations of privacy.
• What about the RIAA’s pre-settlement letters? The statistics about these letters and the reactions to them don’t seem to exist. However, we probably don’t need those statistics to figure out what our university mission requires of us in these circumstances: forward the letter and provide significant, meaningful context to the student(s). Both openness and our respect for the intellect demand no less.
• Are there any online resources outlining our responsibilities under the DMCA? No, there are not any unbiased resources. There are some biased ones, though, such as the EFF and RIAA.