Higher Ed Act P2P Amendment: If At First You Don’t Succeed…

In July, those of us interested in technology issues related to higher education were whipped into a frenzy by an amendment to the Higher Education Act proposed by Sen. Reid (D-NV) that would have put a spotlight on institutions that receive lots of notices alleging online copyright infringement by students and required them to adopt technological measures to reduce infringement. Many in higher education opposed this amendment and Reid dropped it rather quickly. Shortly thereafter, the Senate passed their version of the Higher Education Act.

Now it’s the House’s turn to introduce their bills to renew the Higher Education Act. Yesterday, House Republicans unveiled their version of the House bill. It’s a 409 page document but we’ll only concentrate on our narrow, niche interest of technology affecting students.

As Inside Higher Ed has reported, this bill includes one section that is identical to Reid’s contentious and subsequently withdrawn amendment. Specifically, the bill requires that those institutions identified by the Secretary of Education identity each year the 25 institutions that have received the most allegations of online copyright infringement (and a minimum of 100 notices) provide evidence to the Secretary that they:

1. Have notified students on their policies and procedures related to the illegal downloading and distribution of copyrighted materials by students
2. Undertake a review of their 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. Have developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.

This section of the Republican’s bill is almost word-for-word identical to Reid’s amendment. As I see it, the primary difference between this bill and Reid’s proposed amendment are that (a) this section is part of a much larger bill, potentially making it more difficult to focus on or repudiate, (b) the bill is proposed by Republicans, the minority party, whereas Reid;s amendment was proposed by the Senate Majority Leader (and thus a Democrat), and (c) this is a House bill and the House has been much more sympathetic to copyright holders and very unsympathetic to concerns of colleges and universities.

Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education, is quoted by Inside Higher Ed as saying: “Ironically, as drafted the legislation would wrap institutions in an amazing amount of new federal red tape and, at the same time, order the Secretary of Education to study ways to reduce overregulation.” Contradictory political and financial demands are neither new nor unexpected but they take on additional significance when the political demands are of unproven and dubious effectiveness. We can be sure that this portion of the bill, if passed, would increase costs and likely decrease freedom for students on campus but we have no assurances that the required technical means will have any lasting or significant effect on reducing copyright infringement or effecting a change in the ethics, actions, or beliefs of students. As demanded and rewarded by our current electoral system, these legislators are overlooking or ignoring the long-term view in favor of the short-term view that favors financial gain.

Looking beyond this particular section of the bill, other sections address issues of concern or interest to us:

• Fund for the Improvement of Postsecondary Education (FIPSE) funds would be made available for “supporting efforts to establish pilot programs and initiatives to help college campuses to reduce illegal downloading of copyrighted content, in order to improve the security and integrity of campus computer networks and save bandwidth costs.”
• Several sections specifically address distance education, including sections focusing on Title III funding for Tribal Colleges and Universities and Alaska Native and Native Hawaiian-serving institutions and another section mandating the Secretary of Education work with the National Academy of Sciences to “conduct a scientifically correct and statistically valid evaluation of the quality of distance education programs, as compared to campus-based education programs, at institutions of higher education.”
• Many sections include amendments to include or require electronically-distributed information and resources.

I am also slightly amused that several sections of this bill specifically focus on the Department of Education’s College Online Opportunities Locater (COOL) online tool. Not only do many of the recommendations seem to be micromanagerial and overly specific for a federal law but the tool itself was recently revamped and relaunched as “College Navigator.” This is another fine example of the speed with which technologies and technological tools change.

Update: EDUCAUSE has posted some talking points (Word document) for those who wish to contact their representatives and urge them to oppose this bill.