Mandatory Network Filtering to Prevent Copyright Infringement

Two recent activities surrounding online copyright infringement:

First, Senator Reid (D-NV) plans to introduce an amendment entitled the “CAMPUS-BASED DIGITAL THEFT PREVENTION” to the Higher Education Reauthorization Act. If successfully added to the bill, it will require the Secretary of Education to identity the 25 institutions who “received during the previous calendar year the highest number of written notices…alleging infringement of copyright” and “from among [those 25 institutions], those that have received…not less than 100 notices alleging infringement of copyright.” If I understand that correctly, it’s the top 25 list minus any who received 100 or fewer notices (potentially making it a top less-than-25 list).

Those institutions identified by the Secretary must:

  1. Provide evidence to the Secretary [of Education] that the institution has notified students on [sic] its policies and procedures related to the illegal downloading and distribution of copyrighted materials by students as required under section 485(a)(1)(P)
  2. Undertake a review, which shall be submitted to the Secretary [of Education], of its procedures and plans related to preventing illegal downloading and distribution to determine the program’s effectiveness and implement changes to the program if the changes are needed
  3. Provide evidence to the Secretary [of Education] that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property

So we may be mandated to tell students about our copyright policies? We will probably be told to do that anyway but that’s okay. We also have to review our policies and practices? Uh, okay. Then we have to report that the Secretary of Education? That’s a bit micromanagerial… And we have to employ a “technology-based deterrent?” That’s definitely micromanagerial. Not to mention potentially wasteful and ineffective (more on that in a bit). After all, Senator Reid (who apparently can not tell or does not even care about the distinction between copyright infringement and theft) is in the right position to tell us the best ways to go about our jobs! And let’s not forget that those who are accused of copyright infringement are guilty and DCMA notices are an accurate measure of copyright infringement.

Needless to say, many in higher education are opposed to this amendment. The American Council on Education (ACE), Association of American Universites (AAU), National Association of State Universities and Land-Grant Colleges (NASULGC), and EDUCAUSE have asked their colleagues in higher education to contact their senators to oppose this amendment. I will be contacting my senators’ offices on Monday and I urge you to do the same.

Second, there is similar action brewing for commercial Internet Service Providers (ISPs). In a comment to the FCC, NBC Universal has asked that the FCC require that “broadband service providers have an obligation to use readily available means” to stop copyright infringement. It’s not quite the same thing as the Senate Majority Leader proposing a law but the FCC has a broad mandate (some say too-broad and others say that it routinely oversteps its mandate but those are discussions for another day or another blog altogether) so the effect could be the same. The Electronic Frontier Foundation (EFF), a civil rights organization that concentrates on technology-related issues, has joined with other organizations to file an opposition comment.

The actual comment submitted by the coalition was prepared by Public Knowledge, another rights advocacy group who concentrate on technology issues. John Bergmayer of Public Knowledge writes on their website:

Network filters can’t work. Encryption, clever technologies like traffic shaping, and determined pirates can always route around any filtration system, including so-called “deep packet inspection.” Eventually, false positives could outnumber the infringing material that is blocked… Plus, network filters would have zero effect on “sneakernet” transfers (whereby people share burnt media and portable hard drives which each other), which by some measures makes up the majority of file-sharing. They would cripple the Internet for little gain, even to themselves.

I don’t know how to balance what John says above (which resonates very strongly with me) with the knowledge that just because something isn’t 100% effective that doesn’t mean we shouldn’t pursue it (“don’t let the perfect be the enemy of the good”). Much of my own reaction to this issue, and the two developments discussed above, is colored very strongly by the perception that many of the critical issues are being twisted or ignored by the large and well-financed parties whose primary interest is in preserving their cash flow. I struggle to not immediately denounce or dismiss their position or statements but many of them are so blatantly false or twisted (logically, ethically, and sometimes legally) that it’s an immense struggle. It is clear to me, however, that we, not our congresspeople or the Secretary of Education, are in the best position to judge and implement what works best for our campus and our students. That may include technological devices or it may not and they should not be mandated.

Please contact your senators. Let’s not let the RIAA, MPAA, and others micromanage our campuses.

Update: I got one important detail wrong in my original post: the provisions of this bill will only apply to the “Top 25” institutions identified in the previous year, not all institutions. That doesn’t really change much but I’ve edited the post to get this detail right.

Update 2: Inside Higher Ed’s article describing this amendment and reaction to it is now available. Don’t miss the scathing comment left by Kenneth Green, director of the Campus Computing Project, in the Comments section below the article.

Update 3: Reid has dropped his amendment in favor of a modification (see page 10) requiring institutions to notify students of policies related to online copyright infringement.  We’re not of the woods yet as the real battle is expected in the House but this is a good win for us.







5 responses to “Mandatory Network Filtering to Prevent Copyright Infringement”

  1. bill Avatar

    I agree that the perfect shouldn’t be the enemy of the good. But the technologies and methods that are out there for filtering the net aren’t “good.” If there was some magical way to shut down 70% of copyright infringement–without blocking out legal and legit transfers (which sometimes may be done without “permission”), that might be fine. A better idea, though, is for the content industry to maybe NOT try to retool the net to their liking and instead find better ways of putting content into people’s hands when and how they want it.

    As for Reid, he’s exactly the kind of sucker that these fly-by-night outfits that peddle their “solutions” to legislators and not technologists prey on. Campuses ought to be protecting and educating their students, not dragooned into becoming the content industry’s personal police force.

  2. Kevin Guidry Avatar
    Kevin Guidry

    The question is: ARE campuses “protecting and educating their students?” I don’t think I agree wholeheartedly with the notion that we should be “protecting” students. There should definitely be a lot of space for experimentation and exploration but it’s integral to the educational and maturation processes that there be consequences for actions. I’m also not sure if we’re really doing much to educate our students about copyright. Does one 5 minute scare mongering session during orientation or a quiz before being allowed to register one’s computer on the network really constitute “education?”

    That seems to me to be where we have gotten ourselves into trouble: we talk a good line but even if we’re actually walking that line we’re sure as hell not convincing anyone that we’re doing that. That I, someone very close to and knowledgeable of this issue, am skeptical of our efforts should say something about how we’re publicizing both our efforts and their effectiveness.

    That does not, however, excuse the feeble and misguided efforts of some of our legislators. For them to accept at face value the word of the copyright holders is foolish and negligent. For some of them to sneer at the very concept of academic freedom is indicative of a profound misunderstanding of higher education. For them to mandate the GAO to perform fundamentally flawed “research” to bolster their already-reached conclusions is disgusting and pathetic. I can understand that good, honest, and knowledgeable people can have very different points of view on this issue but the actions of some of our legislators are not those of good, honest, and knowledgeable people. And that, for me, raises larger and disturbing questions about the nature and makeup of representative democracy in modern America.

  3. Alvin Cabatingan Avatar
    Alvin Cabatingan

    I’m wondering if we should offer alternatives to illegal downloading? Instead of investing money into “managing” the illegal content should we invest in services that provide a legal alternative?

    On a side note, is there for anyone who utilized a service, what was the impact on your network and student behavior?

  4. Kevin Guidry Avatar
    Kevin Guidry

    Alvin – Last year, the ResNet Applied Research Group (RARG) conducted a survey of institutions employing legal services. To the best of my knowledge, it’s the only multi-institutional survey or research effort to look into this issue. Most of the most pressing questions – does it work? how well does it work? – remain unanswered as those are very difficult things to to measure.

    It’s also worth checking out Illinois State University’s Digital Citizen Project as they have done quite of bit of thinking about this issue. “Offering a legal alternative” is one of their recommended strategies for meeting this challenge. The following article from the NASPA Journal might also be useful and informative: Lane, J., & Healy, M. (2006). File sharing, napster, and institutional reponses: educative, developmental, or responsive policy? NASPA Journal, 42(4), 534–548.

    Personally, I understand the “but they’re doing it anyway!” argument but I have difficulty using tuition money to pay for a service that is not educational in nature. That difficulty is compounded by the dearth of research in this area regarding the effectiveness of these services in changing students’ behavior. If we believe the behavior is unethical (and it’s certainly illegal) is the correct response to offer a service that may, in some ways, legitimatize the behavior? Although offering a legal service will provide us with an excellent talking point/defense when our legislators come knocking at our door, will it actually address the issue at hand?

  5. […] like somebody took Fahmy by his word: Senate majority leader Harry Reid introduced an amendment to the Higher Education Reauthorization Act late last week that included a filtering mandate for […]

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