House Passes Bill Addressing Higher Ed and Online Copyright Infringement

I’m sure that everyone interested in this topic already knows that last week the House of Representatives passed H.R. 4137 the College Opportunity and Affordability Act.  This is the legislation that includes a section not only requiring colleges and universities to report to students their online copyright policies but also “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.”  The Senate version of the legislation does not include that language so this will have to be worked out between the House and the Senate before the final bill can be sent to the president.

In related news, it appears that Rep. Berman (D-CA) is stepping down from his position as chair of the House Subcommittee on Courts, the Internet, and Intellectual Property.  He has been a very strong supporter of the music and movie industries.  We can only hope that Berman’s departure will start to bring this subcommittee closer to a balance between protection of copyright and the rights of citizens.

State of the Net: Internet Content Filtering

The first item on the agenda of this year’s State of the New conference of specific interest to me and appropriate for this blog was a panel discussion of Internet content filtering. The panel was formally titled “Internet Copyright Filters: Finding the Balance” and it was moderated by David Sohn of the Center for Democracy & Technology. An audio recording of the panel can be found on the Net Caucus’ Web page.

The panelists were:

  • Mia Garlick, YouTube: Garlick didn’t seem to play a very prominent role in this discussion. She seemed to be a bit overshadowed by some of the other personalities on stage.
  • Greg Jackson, University of Chicago: Jackson is the CIO at the University of Chicago. He also spoke at one of the most recent congressional hearings on P2P.
  • Gregory Marchwinski, Red Lambda, Inc.: Red Lambda is a company that has commercialized technology originally developed at the University of Florida to address online copyright infringement on its residential computer network. Marchwinski testified before Congress about a year ago in a hearing focusing on online copyright infringement on college and and university campuses.
  • Cary Sherman, Recording Industry Association of America (RIAA): Sherman is the president of the RIAA and he frequently appears on panels and before Congressional committees representing the recording industry.
  • Gigi Sohn, Public Knowledge: Public Knowledge is a non-profit advocacy group that has often taken the lead on copyright-related issues and legislation. Sohn is their president and she was a very lively and commanding presence on the stage.

The discussion was a bit confusing as it wasn’t always clear if the panelists were addressing the topic of mandatory filtering (which almost everyone seemed to agree would be a bad idea, even Sherman) or the more general topic of filtering.

The panel opened with a brief introduction from each of the panelists. Sherman repeated the worn-out line that “piracy is devastating the industry” and advocated for filtering because it (a) is a very targeted approach and (b) can distinguish between infringing and non-infringing uses. Gigi Sohn was next in line and she laid our her organization’s opposition to mandatory Internet content filtering based on three points: (a) it would block legal speech, (b) it would not stop determined pirates (yes, she called them pirates; I was so disappointed that she ceded that ground right away and confused the issue from the very start), and (c) it would cause network degradation. Garlick then introduced herself as working for YouTube and then gave an overview of YouTube; I was a bit insulted by her overview but I guess there may have actually been people in the room who didn’t know about YouTube. The interesting bit from Marchowski’s introduction was an acknowledgment that encryption is a big challenge for filtering. Jackson introduced himself by admitting that he agreed with much of Sherman’s position, particularly the idea that copyright infringement must be addressed with a multi-faceted approach.

Jackson went further, however, in raising two very interesting points directly relevant to higher education. First, he wondered aloud if, given the size and complexity of the network at the University of Chicago, it would be cheaper to acquire a blanket license for music and movies than to attempt to effectively filter that content. He returned to this point later in the discussion by comparing network filtering with other kinds of filtering such as spam filtering. The primary difference between spam filtering and content filtering, he explained, is that spam filtering is done at the checkpoint(s) where e-mail enters and leaves the institution’s network. Network filtering, however, would have to performed on many thousands of network devices to be effective. However, Jackson’s point is valid only if we are seeking to filter content as it moves within the network; if we’re only interested in preventing content from entering or leaving the network, we can filter it at the chokepoints where the network connects to the Internet (or Internet2 or Lambda Rail or whatever) just as we do with packetshaping and other devices. Second, Jackson said that the majority of infringing content is not exchanged via P2P networks. I don’t know what research he was quoting but I need more detail to place his assertion in context. It sounds a bit fishy but if his statistic is limited strictly to P2P then we would need to know about network-based or -enabled infringement as to limit the discussion to P2P misses the point.

Many of the panelists agreed that encryption is a looming problem. Marchwinski compared the current arms race to a balloon: if you push on the balloon in one place, it simply expands in other places. Sherman acknowledged the problem and raised DRM and applications on end-user’s computers as a potential solution. However, he agreed that education is still the key (which makes one wonder: Why the hell isn’t the RIAA engaging in honest and effective education?). Gigi Sohn was quick to followup that education must not solely focus on what one can not do but must also include what one can do with copyrighted material. Sherman pleaded that we “not let fair use…be the excuse that stops the development of technology.” Jackson mentioned the University of Michigan’s “Be Aware You’re Uploading” program as an effective and interesting education effort.

Jackson raised several other interesting points during the discussion. One interesting datum is that he estimates that the University of Chicago spends between $100,000 to $200,000 responding to DMCA takedown notices (his own time, his staff’s time, and judicial affairs). He also reminded everyone that most organizations already practice some form of content filtering with our spam filters, anti-virus filters, and security-specific filters. The challenge is in how we decide what to filter.

One of the final points of discussion centered on potential First Amendment issues raised by an audience member. Gigi Sohn expressed that there may be implications even for non-governmental organizations given that copyright itself is enforced by the government. The larger point, she explained, is that “This is how people are communicating today. This is expression and it must be protected.”

There are issues that were not discussed during this panel that form important parts of the larger picture. Other panels discussed the concerns held by legislators and parents about content available to minors. The Morning Keynote by Rep. Mary Bono Mack (R-CA) focused heavily on intellectual property (but completely neglected fair use). Several speakers throughout the day were FCC commissioners and the prospect of government-mandated actions or restrictions seemed to loom over many discussions. However, it seemed to me that nearly everyone was in agreement that regulation for the Internet would be a bad idea (network neutrality crept up in a few discussions but seemed strangely absent the entire day as a substantive issue).

It seems to me that the principle problems with Internet content filtering are:

  • It will never be completely effective. This is not a show-stopper as “must be 100% effective” is an unreasonable expectation or standard of review.
  • It will never be able to distinguish infringing uses from non-infringing uses. Fair use is hard. It’s been argued that it’s intentionally complex in many ways to ensure that there are human beings, presumably learned and educated human beings (i.e. lawyers and judges) involved to ensure both the copyright holder and the alleged infringer are protected. Unless we dramatically change the laws to simplify fair use (which would probably be a bad thing, on the whole) we’ll never be able to programatically address fair use.
  • Imposing filters and then requiring users to request exceptions, an approach advocated by many, seems to fundamentally and negatively affect innovation and creativity. Currently, we’re free to make use of copyrighted works without asking permission. We might be infringing on the copyright or we may be making fair use of it but the point is that we don’t have to ask permission; we can only be stopped afterwards and prevented from doing the same thing again. Requiring users to ask permission beforehand, even if permission were always given, would impose a barrier that is undesirable and harmful. Innovation and creativity must not be tied up by red tape and bureaucracy.

I haven’t covered all of the panel discussion and I feel that I haven’t covered it particularly well. I encourage you to listen to the audio of the discussion if you’re interested in this topic. I wouldn’t be at all surprised if special interests attempted to force colleges and universities to purchase, install, and use Internet content filtering. I would hope that such efforts would be defeated but if the trendline holds true then we’re due for some more ill-advised attempts to address the issue of online copyright infringement on campuses.  But, as Jackson mentioned throughout the panel, we already already filtering content on our campus networks; we need to figure out how best to decide what to filter.

By the way, I’ve been told that the House version of the Higher Education Act (HR 4137 the College Access and Affordability Act) might go to vote this week. Contact your representative and register your opinion.

Latest Attempt at Higher Ed P2P Legislation: This Time It’s the Democrats

On Friday, House Democrats introduced “The College Opportunity and Affordability Act of 2007.” Ostensibly intended to “address the soaring price of college” and “ensure [that colleges and universities] operate in the best interests of students and families,” the bill includes the worst provision yet regarding peer-to-peer filesharing. Unlike previous attempts that would have only required the “worst” institutions to adopt technological tools to address and prevent P2P filesharing, this legislation would require that all institutions that receive federal financial aid “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.” Unless I am misunderstanding this proposed law, it appears to be a blatant attempt to force all colleges and universities to pay a fee to the RIAA, MPAA, and others by requiring us to sign up for a service such as Napster or Ruckus (which, I know, is currently free; think that would last long if everyone were required by federal law to sign up to it?).

Other coverage of this proposed bill:

  • The Chronicle of Higher Education includes praise for this misguided initiative by the MPAA (“a positive step in educating students and deterring illegal downloads and file sharing on college campuses”) and condemnation by EDUCAUSE (“we’re raising the cost of higher education by government mandate in order to transfer more dollars to the entertainment industry”).
  • Inside Higher Ed’s coverage expands on the EDUCAUSE position by quoting them as saying that “Campuses that offer legal downloading services typically must charge a student fee to cover the expense. Taken across all campuses, this practice could represent a transfer of over $400 million annually from higher education to the entertainment industry while raising the cost of higher education.” Although it’s getting a bit old, our research into online entertainment services confirms part of that assertion.
  • One of the most damning criticisms of this proposed legislation comes from William Patry, Google’s copyright counsel and one of the country’s leaders in copyright law. Patry asserts that “it is disturbing for the federal government to require educators to be policing enforcement issues for private companies on pain of loss of federal funds.”
  • From the technology press come reports from Ars Technica, CNET, Campus Technology, and Daily Tech. In the CNET article, the reporters note that the MPAA has stated that institutions that employ technology to prevent P2P filesharing have experienced significant reductions in copyright complaints, “in some cases going from 50 a month to none.” Once again, I caution that the number of copyright complaints is not an indication of copyright infringement but an indicator of the copyright holder’s willingness to file a complaint as he or she is perfectly free to ignore infringements. Thus the MPAA’s assertion carries little weight unless the measure of success is “we’ll leave you alone – for now” instead of the actual reduction copyright infringement or change in students’ attitudes and actions.

The entire 747-page bill can be found here (1.2 MB pdf) for those who want to peruse it in all of its glory. It’s scheduled to be marked up in committee tomorrow (Wednesday). In addition to sending its own letter to members of the House, EDUCAUSE has once again called on its members to oppose this legislation by contacting legislators.

This is quite depressing. So let’s not discuss the other stupid P2P legislation recently introduced by a small bipartisan group of senators. Luckily, the “Pirate Act” appears to have little chance of passing as even the Justice Department doesn’t seem to be enthusiastic about this attempt to expand their workload to protect private interests.

Latest Copyright News: Discussions at Ohio University and Legal Actions at University of Oregon

As the recording industry continues legal and quasi-legal proceedings against college and university students accused of copyright infringement, discussions and legal actions at colleges and universities also continue. A recent forum at Ohio University (video and Chronicle blog discussion) drew some attention although it is unclear if new ideas or initiatives will grow out of this event. The event was 2.5 hours long and I admit that I have not yet watched all of the video. (So far, I am unimpressed by the statements made by the songwriters invited to speak at this even; their view of copyright is limited and not legally sound and their view of our historical relationship with copyright is rose-colored and unrealistic).

The Chronicle’s Wired blog’s article about this event notes that “Stewart Harris, president of Edisto Sound, bemoaned the fact that some college students in the crowd shook their heads when he referred to copyright infringement as ‘stealing.'” I have been consistent in criticizing the use of the word “stealing” when discussing copyright infringement. I make this criticism on both intellectual and ethical grounds. Intellectually, copyright infringement is simply too different from theft for it to be an accurate and equivalent comparison. More strongly, I believe that most who intentionally make this equivocation know that these activities differ; they make the comparison not as an accurate legal or technical description but to make a moral or ethical statement. Just as labeling large scale copyright infringement “piracy” invokes images of theft and bloodshed, conflating copyright infringement with theft invokes imagery that miscasts college students in their residence hall rooms as thugs using force to physically take things from people. We can and should discuss the pressing issues of copyright and the shifting meaning of property without intentionally miscasting some of the players or lying.

In an article published on the same day as the forum at Ohio University, the student newspaper The Post reported that the institution pays about $76,000 each year for its technological solution, AudibleMagic. As with the forum, the Chronicle’s Wired blog also discussed this item. The Chronicle’s post was entitled “The Cost of Copyright Compliance” but I assert that the quoted figure of $76,000 (“$60,000 [for] software and hardware…and…$16,000 for support, maintenance and regular database updates”) does not capture the full cost of dealing with allegations of copyright infringement by on-campus Ohio University residents. The only significant study analyzing these costs has been performed by Illinois State University as part of their Digital Citizen Project. Their study, limited to one institution at one period of time, found their costs to be $76 for first offenses and $146 for second/critical offenses. Those figures include staff time, computer systems, materials, and for second/critical offenses, student judicial proceedings.

During the Ohio University forum, several speakers noted that the moral and ethical tone and actions of the recording industry are playing a large role in the discussions and reactions of college students and others. That issue is brought up again by some of those responding to the Chronicle’s request for interview questions for Cary H. Sherman, President of the Recording Industry Association of America. I won’t repeat their questions here; read them for yourself.

Moving on from the Ohio University forum, we come to the Oregon Department of Justice’s motion to quash the RIAA’s subpoena of seventeen University of Oregon students. For the legal details of this motion, including links to the motion itself, I refer you to Ray Beckerman’s blog. In brief, this motion is recognition by the State Attorney General that the arguments made by many on the receiving end of these subpeonas – we often can’t positively identify the alleged infringer – are correct and legally significant. Moreover, the motion asserts that the university should be able to ask the RIAA for more information before students are served subpoenas in which they have not been properly identified.

Also superficially separate from the Ohio University: For a discussion of evolving copyright issues related to technology and corporations but not directly involving academia, check out this post by Mike Madison. Don’t miss the reply from Siva Vaidhyanathan, a noted cultural historian and media scholar. While that particular discussion begins with YouTube and Google’s book scanning project, the larger issue of “are corporations evil?” is directly related to the ethical, moral, and legal issues related to the RIAA and their actions.

Finally, I haven’t yet mentioned that the RIAA won their first lawsuit against someone accused of peer-to-peer copyright infringement. Many others have already written about and discussed this event so I won’t waste your time by repeating it all here. To me, the most interesting aspect of this case is that the judge allowed the jury to consider the mere making of material available equivalent to actual copyright infringement. The defendant plans to appeal the ruling and this particular aspect of the case may be key in the appeal; it’s certainly high on the list for the EFF as they plan to file a friend-of-the-court brief. As an aside, Wired’s continuing coverage of the RIAA is both very one-sided and amusing (for those who happen to be on the same side, of course) as well as being informative and interesting.

Update: Ah, I knew I was forgetting to add something to this post!  In September, American University’s Center for Social Media published a study entitled “The Cost of Copyright Confusion for Media Literacy;” the study was funded by the John D. and Catherine T. MacArthur Foundation.  The researchers interviewed teachers, professors and other educators and highlights the misunderstandings of copyright and fair use even among those who should know about them (the sample seems to include a lot of media specialists).  This study seems to support the statement I made in the first paragraph when I criticized some of the participants in the Ohio University making unrealistic assumptions about how others view and relate to copyright.

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.

Updates on Old Topics and Quickies

I’m as settled into my new place and job as I will get so I hope to resume substantive posts soon. In the meantime, here are a few updates on topics previously discussed here and a few quickies:

  • Lawsuits against college and university students accused of downloading or sharing mp3s continue and institutions continue to ratchet up the stakes for students accused of copyright infringement. Are institutions really getting more strict about this issue or are those who are instituting harsh punishments simply the ones who attract the media reports? And are they doing it in part to attract those media reports (“Look, we’re trying to do something about this! Didn’t you read about it in the newspaper?”)? Meanwhile, on the opposite side of the issue from the MPAA, the EFF has released a report entitled “RIAA v. the People: Four Years Later” (pdf file).
  • Universities and colleges have often (and rightly) complained that most of the congressional attention regarding copyright infringement has unfairly focused on them. No worries. Some in Congress are eager to attempt to do foolish things to regular Internet Service Providers, too.
  • One of the threads in our recent discussion regarding Facebook advertisements has focused on a shared desire to more accurately target Facebook users. Either we’re starting to see progress on this front or there were developments of which we were previously unaware (likely both). Not only are there applications built to specifically address this issue, Facebook is working to build this into their own ad system.
  • Among the lessons learned from Virginia Tech are many related to communications and technology. In addition to Virginia Tech’s official overview, the Roanoke Times has an overview of Virginia Tech’s internal reviews. Of specific interest is the Information and Communications Infrastructure Group report (147 page pdf). The two main recommendations in the report are to (a) install a “new fully integrated digital campus architecture for all telecommunications functions based on Internet Protocol (IP)” and (b) “make selected research and administrative IT capabilities available to local first responders to improve radio communications capabilities.”

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.

ResNet Symposium: Keynote Address Addresses Institutions’ Ethical and Legal Responses to Students’ Alleged Copyright Infringement

The keynote address on Sunday morning by Jim Gibson (who also presented a pre-conference session on Saturday) focused on the primacy of the university mission in determining institutions’ responses to allegations of students’ copyright infringement. Specifically, the address focused on file sharing and related copyright complaints and DMCA takedown notices.

First, Gibson noted that universities have a special focus as secular, sacred places where:

  • disagreement is valued and promoted
  • unpopular views are protected
  • the primary mission is to produce informed citizenry with knowledge of their rights and responsibilities

Following from this focus are several key values held by universities:

  • openness
  • respect for the intellect, including treating students as grownups and exercising a willingness to be convinced
  • a sense of independence

Gibson asserted that when confronted with a policy question, the university’s primary reaction should be to ask “What does the university mission dictate we do?” In the case of file sharing and allegations of student impropriety, Gibson asserted that education should be the university’s primary response. Since we must maintain a sense of independence, we must not blindly bow to the demands of the copyright holders. Instead, we should embrace a healthy respect for the intellect and not dumb down the issues when discussing them with students. Discussions of intellectual property should be approached as a critical examination of all the issues involved.

Gibson presented the actions of Swarthmore College when their students were sued by Diebold for copyright infringement as example of a very poor reaction not in keeping with the university’s mission. Although the institution praised the students’ “resolve to act on behalf of an open and fair democracy,” it failed to back up those words with the proper actions. For example, it appears that the institution did not even notify the students of their right to respond to the takedown notice with a counter notice.

Specifically, Gibson recommended that institutions:

  • notify students of their legal rights when served with any sort of notice
  • notify students of their status with the university and its policies
  • ensure they are responding in the appropriate manner to DMCA or DMCA-like notices (remember that institutions are not *legally* obliged to do anything other than terminate repeat offenders if the institution is acting as a “mere conduit”)

Following the keynote address, Gibson took questions from the audience:

  • What is the copyright holders’ responsibility to improve their own images? Their image is certainly tarnished but their mission differs significantly from our own. In general, Gibson feels very unsympathetic towards students or others sued for copyright infringement. “[Just because] 98% of your friends didn’t get sued doesn’t mean you shouldn’t.”
  • How will our search for funding and change to a commodity change our mission? It’s worrying, particularly in the areas of: big athletics, patents, naming rights, and decreasing public support.
  • Some corporations who want us to outsource our ResNet programs are using DMCA notices and copyright issues as leverage. In essence, they are telling us that we can outsource those issues to them just as we can outsource our network and support. What are your thoughts? It depends on the level of involvement.
  • What is your take on the potential congressional mandates to use particular technologies to address these issues and shift the burden of enforcement away from the copyright holder and onto the university? Gibson was not worried about sweeping changes to the DMCA or copyright law. Universities are “low hanging fruit” but large commercial ISPs know that if they “let us go” then they will be next. In other words, we (should) have large allies. However, university-specific provisions in the law are a distinct possibility.
  • Will copyright owners be able to piggyback on CALEA or similar law enforcement and national security laws? Maybe. Our “reasonable expectations of privacy” (a key legal phrase and test when considering Fourth Amendment issues) change over time, particularly in response to police powers and practices. In other words, we often answer the question “What can the police do?” by asking “What do the police do?” and that is obviously very problematic and eroding of our expectations of privacy.
  • What about the RIAA’s pre-settlement letters? The statistics about these letters and the reactions to them don’t seem to exist. However, we probably don’t need those statistics to figure out what our university mission requires of us in these circumstances: forward the letter and provide significant, meaningful context to the student(s). Both openness and our respect for the intellect demand no less.
  • Are there any online resources outlining our responsibilities under the DMCA? No, there are not any unbiased resources. There are some biased ones, though, such as the EFF and RIAA.

ResNet Symposium: Copyright, Colleges and the DMCA

In addition to running my PDS session in the morning, I also attended a PDS session in the afternoon.  Entitled “Copyright, Colleges and the DMCA,” it was taught by Jim Gibson, University of Richmond law professor and director their Intellectual Property Institute (IPI).  The IPI’s “What do you think?” video was very popular in last year’s document fair at the ResNet Symposium.

As copyright is a very broad topic, the session was limited in scope to those issues that ResNet professionals are likely to encounter; entire important areas of copyright such as fair use were omitted or covered only in the briefest sense.  The PDS began with a basic overview of copyright, including discussions of liability with a significant focus on secondary liability as it is the issue ResNet professionals are most likely to encounter.  The presumption is that institutions are unlikely to knowingly engage in copyright infringement.  Instead, ResNet professionals are likely to be dealing with copyright holders as they work to address the alleged infringement of their copyrights by students.

To this end, Gibson spent a significant amount of time discussing the safe harbors in the DMCA.  In particular, the “transitory communications” and “system storage” safe harbors were discussed in detail.  Gibson stressed that:

  1. The DMCA “notice and takedown” process does not apply if the institution is acting as a “mere conduit” of network data.  By the letter of the law, we are not required to react to, follow up on, acknowledge, or comply with letters from copyright holders asserting our users are infringing on their copyrights if the alleged infringement is only occurring on our network (as opposed to occurring on our servers, referred to as “system storage”).  We are, however, required to keep track of repeat offenders as the DMCA requires us to “adopt, publicize, and reasonably implement a policy of terminating repeat infringers” (Gibson’s words, not directly from the DMCA).  Of course, we could also choose to ignore even that provision of the DMCA if we are willing to give up our “safe harbor” defense.
  2. Safe harbor defenses only provide immunity to monetary damages; we may still be subject to injunctions e.g court orders to deny access to materials or users.
  3. Even if we give up or do not meet safe harbor requirements, the copyright owner must still prove his or her case in court.  In other words, safe harbor is not the only defense available.  The other traditional defenses such as fair use are still potentially available.
  4. Unless the network operator is acting as a mere conduit – a very big “unless!” – copyright owners can utilize the special provision in the DMCA to subpoena identifying information about alleged infringers.  In those cases where a network operator is acting as a mere conduit, copyright owners must file suit (John Doe suits) to file subpoenas.

Most of the questions asked seemed to be either requests for clarification or contrived examples seeking to better understand the complex legal issues presented and discussed.  That some of these are complex and confusingly similar likely contributes to our widespread ignorance of these laws and how we should be reacting to alleged infringement.  There was also widespread discussion of the shared opinion that colleges and universities are being disproportionately targeted by the RIAA, an opinion shared by Gibson.

Peer-to-Peer in Senate version of Higher Education Reauthorization Act

The Senate Health, Education, Labor and Pensions Committee has released a copy of their version (warning: 534 page pdf) of the Higher Education Reauthorization Act. There have been rumblings that some legislators may try to insert legislation related to online copyright infringement or even change safe harbor and related laws to force colleges and universities to address online copyright infringement in a manner more pleasing to Congress. That seems much more likely to happen in the House than the Senate.

In any case, the only mention I can find in this very early copy of the proposed bill from the Senate is an amendment to 20 U.S.C. 109. This section requires institutions to “carry out information dissemination activities for prospective and enrolled students” where the specific information is listed in the law. Right now, it includes things like available financial aid, the costs of attending, accreditation status, and campus crimes (the specifics of the campus crime reporting, the Clery Act, is also in this section of the law). The proposed bill would add, among other things, a requirement that institutions notify students about:

“Institutional policies and sanctions related to copyright infringement that informs students that unauthorized distribution of copyrighted material on the institution’s information technology systems, including engaging in unauthorized peer-to-peer file sharing, may subject students to civil and criminal penalties.”

It’s a bit silly to remind people that “breaking the law is illegal” but a reminder can’t really hurt. This is something that we should all be doing anyway to address this challenge. Much worse things could be inserted into this bill and we should be on the lookout for them, particularly when we start see public action in the House. We’ve got a long way to go before this is even close to becoming a law.