Guidance on Higher Ed P2P Laws Nearly Finalized

The Department of Education is close to issuing final guidance on the recently-passed laws that require colleges and universities to take action about online copyright infringement. On Friday, August 21, the Department issues its final “Notice of proposed rulemaking.” One of the final steps in enacting a law, these proposals are the result of public hearings and internal and external discussions with representatives of the affected groups. In essence, the Department of Education is telling us how they’re going to require us to comply with the new laws and giving us all one more chance to comment.

The section related to online copyright infringement is entitled “Peer-to-Peer File Sharing and Copyrighted Material (§§ 668.14(b) and 668.43(a))” and it begins on page 13 of the document linked above. For those who have been following this, there aren’t really any surprises. For those who have not followed this, here’s a brief summary of what colleges and universities will have to do:

• “[Develop and implement] written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network without unduly interfering with the educational and research use of the network.” This plan must include (a) “one or more technology-based deterrents,” (b) a way to educate the community about copyright, (c) disciplinary procedures, and (d) assessment procedures.
• “To the extent practicable, offer legal alternatives to illegal downloading.”
• Periodically review the alternatives available and make the results of the review available to students.

So let’s review what is new (or at least new to me):

• Related to the requirement that we inform students of copyright law, the Department of Education “will work with representatives of copyright holders and institutions to develop a summary of the civil and criminal penalties for violation of Federal copyright laws” that we can use in our educational efforts. That’s a curious statement and it will be interesting to see what comes of this. Many players in the copyright industry have developed educational materials and they have been uniformly dismal and incredibly one-sided. Many institutions have, of course, developed their own materials so it will be interesting to see if the Department collects materials and attempts to integrate them or how they will approach this. The idea of developing model language and materials is good but the execution is where it may get tricky.
• The discussion of the proposed rules makes it clear that the Department believes that institutions can and must strike a balance between combating online copyright infringement and other priorities such as network security and research purposes. Moreover, that the proposed rules give institutions some discretion in how they go about striking this balance doesn’t mean that institutions can intentionally strike a weak balance to avoid combating online copyright infringement.
• The discussion also briefly discusses the negotiations that took place regarding “student” v. “user.” Some sections of the proposed rule only apply to students or perspective students whereas other sections are intentionally applied to users, a much broader group of people. There was even some discussion about whether some of the provisions should be extended beyond students to include employees but the Department doesn’t make such extensions in this proposed rule. I don’t even know if the Department could make such extensions; as I understand it these proposed rules are supposed to interpret the law such that institutions can comply with the law, not go above and beyond to make new laws.
• It’s been a few months since I’ve thought about this legislation so I had forgotten about the requirement that institutions employ at least one “technology-based deterrent.” The discussion that accompanies this proposed rule making and the discussion that accompanied the legislation (The Statement of Managers in the Conference Report for the HEOA) lay out four categories of technology-based deterrents: (a) bandwidth shaping, (b) traffic monitoring, (c) accepting and responding to
  DMCA notices, or (d) a commercial product designed to reduce or block illegal file sharing. The discussion in the proposed rule making says that institutions can “effectively combat the unauthorized distribution of copyrighted material using only one of the four types.” That’s an empirical claim and I would like to know how that conclusion was reached.
• Finally, the discussion indicates that there was significant disagreement about how institutions would be required to evaluate their copyright infringement plans. The proposed rules leave it up to institutions to determine how best to evaluate their plans, an arrangement commonly sought between the federal government and colleges and universities (“We won’t tell you what to do but you have to know and you have to be able to prove that you’re doing it well!”).
  The discussion goes on to lay out some examples of acceptable evaluation criteria. Some criteria might be process-based and focus on the process an institution has developed for combating online copyright infringement. Other criteria might be outcome-based and focus on more direct measures. Some of the direct measures offered in the discussion are: “‘before and after’ comparisons of bandwidth used for peer-to-peer applications, low recidivism rates, and reductions (either in absolute or in relative numbers) in
  the number of legitimate electronic infringement notices received from rights holders.” Unfortunately, some of those measures are plain bad.

You should read the proposed rules yourself and not completely rely on what I have written. There is more in there than I discussed above and what I find interesting may not be what you find interesting or important. These rules are very far along in the process but you still have a chance to comment on them if you are so moved. I can’t imagine that comments would have much of an impact at this point but if you have something to say then please don’t let my cynicism deter you!

Special thanks go to Steve, Anna, and the rest of the EDUCAUSE staff who have done such a wonderful job keeping us all updated as this legislation has moved forward.

Edit: Steve Worona at EDUCAUSE has posted his overview of this document. In it, he also posts the dates and times of two programs discussing this new law that will be presented at the upcoming EDUCAUSE Annual Conference.