Copyright Update: Higher Ed Act Compromise, DMCA Spike, and RIAA Methods

Things are still busy on the copyright front. Among other interesting developments and relevant news:

• The Chronicle of Higher Education reports that lawmakers have reached a compromise on the online copyright infringement language in the Higher Ed Act. According to a draft being circulated by aides, “the compromise adopts the House’s requirement that colleges develop plans to ‘detect and prevent’ illegal downloading of music and videos on campus, including offering alternatives to illegal downloading. But negotiators provided a possible out for colleges, adding the phrase ‘to the extent practicable’ to the language.” So it appears that our concerns have been largely unheard or ignored and we will be expected to fund unproven programs and tools even as we’re severely criticized and chastened for increasing tuition and fees.
• In the past month, many college and university administrators have reported an increase in the number of copyright complaints sent by the RIAA. There has been traffic on some of the listservs and articles in the usual places. Many, including myself, have wondered aloud if there is a connection between this unexpected surge in notices and the ongoing legislative efforts (at the federal and state level) supported and pushed by the RIAA and others. Cary Sherman, president of the RIAA, denies that there is a connection. Given this group’s history of dishonesty and deception I am extremely skeptical of Sherman’s claims. In addition, EDUCAUSE Vice President Mark Luker expressed EDUCAUSE’s position that “counting DMCA notices is a completely inappropriate measure of success in combating infringement and an equally inappropriate basis for comparing the amount of infringement taking place campus-to-campus or year-to-year.” I don’t recall if EDUCAUSE has previously stated this position but I am happy that we agree on this common-sense issue.
• Spurred by the attention stirred up by the increase in notices, the RIAA explained how they “catch” students by using the same software students use to share music online. Their investigative firm, MediaSentry, has automated much of the process although they do not actually download the songs. In addition, the anonymous (WTF?) person who gave the Chronicle of Higher Education a demonstration of the RIAA’s operation said that “the automated takedown notice program we have right now is solely university-focused. We’re trying to make universities aware that they have an issue with peer-to-peer file sharing on their network, and so we don’t send automated notices to commercial ISP’s, I think because they are generally aware that there’s a problem.” That, of course, clearly says that the RIAA doesn’t think that colleges and universities are “aware” of this issue. Either that statement is untrue and the RIAA knows that we take this issue seriously or the world views of these two groups – those who profit off of others’ creativity and creations and those who create and innovate – are so far apart that they are irreconcilable.
• Finally, to step out of the world of higher education and gain a glimpse of these issues from a different perspective, DailyTech reports that the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP) has passed through the House of Representatives almost unanimously (408-11). This bill would create a new cabinet-level position to coordinate “antipiracy” efforts and strengthen many laws related to copyright and its enforcement. This bill has been called “a bill that may be the most outrageously gluttonous IP bill ever introduced in the U.S.” by William Patry and criticized by even the Justice department.

Update: The Chronicle of Higher Education is reporting that Congressional aides are hoping to wrap up negotiations tomorrow (Friday), publish the bill on Monday, name the members of the conference committee on Wednesday, and hold a vote before Memorial Day.  Senator Lamar Alexander (R-TN) is threatening to hold up the bill if “he is not allowed to offer an amendment that would waive some reporting requirements for colleges that agree to other accountability measures.”  Among his many experiences, Alexander was president of the University of Tennessee from 1988 until 1991, so one would imagine that he knows a thing or two about higher education.