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.