Developments in Online Entertainment Services: Cdigix Closing and “Piracy” Abounds

Allegations of widespread online copyright infringement on college campuses continue to flourish. Two recent developments:

  1. Word on the street is that online entertainment company Cdigix is closing its doors and shutting down its service. Along with Ruckus, Cdigix was one of only two online entertainment services that specifically and exclusively targeted college campuses. It’s been a busy few weeks for Cdigix and Ruckus. Just a few weeks ago, Cdigix announced that they had joined Internet2. Days later, Ruckus began allowing all American college students to install their software and download music. One wonders how these events are all connected. One further wonders if Ruckus’ new business model will prove to be more successful than Cdigix’s. Finally, one must wonder what impact these events will have on the perception and evolution of this phenomenon, particularly their potential impact on legislators interested in this topic and those who influence them. (Update: The Chronicle has a story about this with some choice quotes – more on this later.)
  2. A few recent articles in the popular press continue to cloud this issue with unsupportable claims and ridiculous hyperbole. In particular, I deplore the (distressingly popular) practice of conflating copyright infringement with piracy. Without going into a discussion of why we have separate laws regarding theft of physical goods and infringement of copyright, I think it’s clear to everyone that comparing someone accused of downloading or distributing a song with his or computer with one who plunders a ship on the high seas is, at best, silly. Language is powerful. Labeling one who engages in copyright infringement a “pirate” to take advantage of centuries of emotional connections and imagery associated with piracy is inaccurate, misleading, and dishonest. Copyright infringement is unlawful and often unethical; we don’t need to confuse the issue with inappropriate, emotional, and dishonest language. If the Columbia Missourian can get it right, why can’t the Chronicle of Higher Education and other more popular and mainstream publications?

DMCA Takedown Notices Do Not Measure Copyright Infringement

A recent article by Jason Ryan in The State proclaims the “[University of South Carolina] a top pirate among colleges.” Ryan reaches this conclusion because “the [RIAA] has sent 914 notices of copyright infringement to the university this year — the highest number in the state and one of the highest among colleges nationwide — for illegally downloaded songs.” Ryan’s conclusion is false as one can not measure the rate of alleged copyright infringement on a given campus or among the customers of an ISP by the number of DMCA takedown notices received.

As I understand it, the primary problem is that copyright holders in the United States are not required to defend their copyrights; they can, instead, selectively enforce their copyrights (this differs from trademarks that must be defended or they can be diluted and essentially “lost”). In fact, this is exactly what the RIAA has done. “Owing to the impracticality of filing lawsuits against every individual file sharer, RIAA has chosen to focus on a relatively small group of individuals and maximize the publicity surrounding its legal action to discourage the overall participation in file-sharing networks.” Hence the number of DMCA takedown notices or lawsuits can not be used as a measure of alleged copyright infringement

Can one reasonably assume those numbers, summed together, are an upper limit of alleged copyright infringement? In other words, can one say that such a number represents the totality of alleged infringement? No. Only the works of those copyright holders who (a) believe their copyrights are being infringed and (b) who care to take action could be included in such an analysis. It is entirely possible that other works are being infringed but they’re simply owned by other parties than those pursuing these particular legal actions. In the USC example, it’s possible that students (and staff and faculty, oh my!) are infringing the copyrights of non-RIAA music publishers, artists, and rights holders. It’s even possible that USC persons are infringing the copyrights of other media such as movies, software, and books. Further, copyright holders who believe their copyrights are being infringed may elect to take no action or take action other than send a DMCA takedown notice or file a lawsuit. Therefore the number of DMCA takedown notices and copyright lawsuits can not be taken as a measurement of the upper limit of alleged copyright infringement since other infringement not covered by the current notices and lawsuits may be occurring.

Can one reasonably assume those numbers, summed together, are a lower limit of alleged copyright infringement? In other words, can one say that such a number represents the minimum level of alleged infringement? No. Even though DMCA takedown notices are submitted as truthful “under penalty of perjury,” mistakes still happen. For example, some institutions have received takedown notices for non-existent or impossible-to-use IP addresses. One should also take into account the legal and ethical principle of “presumed innocent until proven guilty.” In other words, one should not assume that the asserted activity in a given takedown notice or lawsuit has actually occurred. Not only would that be mistaken in the face of the already-mentioned mistakes and errors that occur but it would also be damaging to the ethical environment on a campus if administrators take, as a matter of course, the word of an external and biased person or group over the word of campus community members. In other words, one must perform due diligence before assuming that an allegation of copyright infringement is true. I will, however, grant that the number of “false positives” and mistaken reports are low and the number of takedown notices and lawsuits is likely to be relatively close to the lower limit of alleged infringement activity but to outright accept the proposition is factually and ethically mistaken.

Where does that leave us? How can one know the true level of alleged copyright infringement? I assert that it is very difficult to discover and keep track of this activity. I do not know of any easy, replicable, and reliable methods for doing so. I hypothesize that such methods might include a combination of measurements of network activity, legal and judicial activity, and qualitative methods of research and assessment. I leave the question of “should we care?” for another day. Suffice it to say that we are under significant legislative pressure to appear to care and to “do something” and that reason alone may be enough for most of us.

Finally, let’s return to the proclamation made in the first paragraph: USC has more received more DMCA takedown notices than other South Carolina institutions and thus has more persons (presumably students) engaged in copyright infringement. This simple argument is untrue as the (true) claim that “USC has received more DMCA takedown notices than other South Carolina institutions” does not, as discussed above, imply that “it has more persons (presumably students) engaged in copyright infringement.” One can say virtually nothing about the actual numbers of persons engaged in alleged copyright infringement at South Carolina institutions given only the number of DMCA takedown notices received by each institution. The race for the “top pirate” of South Carolina colleges and universities is still undecided; I recommend ship-to-ship combat on the high seas or perhaps a series of duels with sabers and pistols.

(There is also the intriguing issue of the RIAA employing Ginger DeMint, daughter of Senator Jim DeMint, R-S.C., as their director of government and industry relations. I leave discussion of this issue to those more well-versed in politics and conspiracy theories.)

Cdigix Joins Internet2: Why?

Cdigix, one of the major players in the higher education online entertainment service field, has joined Internet2. Napster and Ruckus are already members. This announcement (that doesn’t seem to be anywhere on their website, including their press release section) is one of two big announcements expected from Cdigix and Ruckus in the coming weeks. Their second announcement has already been forwarded to the institutions that already subscribe to Cdigix’s services and it could be pretty big when they make it public.

Let’s focus a bit on their I2 membership. With Cdigix joining Ruckus and Napster as Corporate Members of I2 that leaves Real as the only significant player in the higher ed sector sitting on the outside. It’s also curious that Apple hasn’t joined but I think it’s been clear that they really aren’t aiming iTunes at this particular market right now. I also have to wonder if these companies’ presence in I2 really means anything. Is this just a status move (“Look at us – we’re on the Internet 2!”)? Does this simply allow them more access to higher ed institutions in a different and more exclusive venue? Or are there real technical advances that we should expect to come from these companies now that they’re in the I2 club?

I understand why for-profit corporations are allowed to join I2 as they can often contribute a ton of experience and knowledge. But as an I2 outsider I can’t help but wonder how political some of these memberships are (the RIAA and MPAA are members) and just how much some of these groups can and do really contribute. I know that politics matter but that doesn’t lessen my distaste for them.

Update: The second announcement, this time from Ruckus, has been released: they’re opening up the music part of their service to all American college and university students.

Update 2: The New York Times has chimed in on Ruckus’ latest move.

Copyright Education Is Effective

In the new issue of the NASPA Journal is an article from Drs. Jennifer Christie Siemens and Steven W. Kopp entitled “Teaching Ethical Copyright Behavior: Assessing the Effects of a University-Sponsored Computing Ethics Program.” In summary, this article reports that persistent educational efforts have a positive effect on the self-reported behaviors and beliefs of the surveyed undergraduate college students.

The article reports on the results of a broad educational program at a private institution in the Midwest. Students in a freshman introductory class (similar to a Freshman Year Experience class or other “college 101” classes) were exposed to different instructional techniques “to address the issue of ethical use of copyrighted Internet content.” When the results of a web-based survey of the students were analyzed, the most effective efforts were those that utilized multiple techniques. No single technique performed better than any other. Moreoever, there were significant differences between men and women: “males were significantly less likely to agree with the policy…comply with the policy… [and] perceived downloading copyrighted music…and other content…to be significantly more ethical compared to female respondents.”

In a statement familiar to both student affairs administrators and IT professionals, the researchers tell us that “both technologies and laws are quickly ignored or evaded by [students] and…some other approach may be necessary to influence behavior.” In other words, institutions must create and enforce policies and educate students about those policies if they want to change this behavior. More specifically, neither lawsuits against a very, very few students nor technological attempts to enforce behavior have been successful. To the best of my knowledge, the only technology that appears to actually be effective is to simply limit the amount of bandwidth a particular student can utilize. Nearly any other technology can be easily bypassed by savvy students, steps on fair use rights, or both. Of course, one could also just make it someone else’s problem.
It’s interesting to note that both of these researchers are marketing faculty. It is my observation that most of the relevant research into technology issues in which student affairs and university administrators may be interested is coming out of faculty from departments or disciplines other than higher education. Much of the research in which I have been most interested has come from communications faculty. More on my thoughts in this phenomenon can be found in an older post.

Kudos to these researchers for performing this critical research! They are absolutely right when they assert that despite the growing presence of these programs, “there has been little published research on the effectiveness of university-sponsored educational programs in curbing illegal downloading behavior on college campuses. Due to the expense of implementing such programs, it is important to assess their effectiveness.” This is particularly important as Congress continues to press this issue and potentially ineffective solutions in an effort to appease their constituents.

As always, there is much more of interest in the article and I encourage you to read it. I don’t know how widely available the NASPA Journal is in the common journal databases but I’m sure you can obtain the article via InterLibrary Loan if you are not a NASPA member or your institution does not have a subscription.

A Tenuous Connection With Digital Rights Management

One topic of interest among a small group of academics and students is the emerging technology known as “Digital Rights Management” or DRM. As explained by Sean Captain in his New York Times article “So Much Music, So Few Choices,” DRM is “technology that protects copyrighted works by preventing unlimited duplication.” It’s a bit more nuanced that just preventing duplication but that’s an okay generalization. One of Captain’s key points is that “the many conflicting approaches to rights management can also limit choices.” He’s right. Most people encounter DRM for the first time when files won’t move, copy, display, or print as expected: copying DVDs, fast-forwarding through the FBI warning and previews, or moving music purchased online to another computer or player.

What does DRM have to do with student affairs? Alright, it’s a bit of a stretch. It’s definitely a topic that is usually limited to discussion among computer geeks and music industry executives. It is sometimes discussed amongst librarians and scholars as they wonder about how they will continue to access resources and scholarship that are increasingly hidden behind DRM, a discussion that not only revolves around access costs but also publisher lifespans and changes in technology. Luckily for them, new rules are being put into effect to alleviate some of those problems. But others still exist.

One strong connection with student affairs and higher education is the continuing discussion about students’ online copyright infringement and possible solutions. One “solution” pushed hard by the RIAA is the employment of legitimate online entertainment services like Napster, Cdigix, and Ruckus. Those services employ DRM; it’s how they’re able to convince the publishers to allow them to “sell” the music. And what does that mean for students who are in some cases forced to pay for these services whether they use them (or are able to use them) or not? It means they’re renting the music (which is not necessarily bad). It also means no fair use rights (which is necessarily bad).

Is that important to the students? For most of them, it’s not yet important. Many of those who take issue with DRM do so almost exclusively because the music won’t play on their particular mp3 player (see this USA Today article from earlier this year for a typical example). Rarely do students take the wider view (however, I suspect that this view may gain some traction if Jenkins’ Participation Divide ever begins to close as DRM does pose a large hurdle for many reuses of culture – remixes, mashups, etc.). And it’s hard to fault them. It’s partially an issue of maturity and experience, qualities traditional college students lack by definition. But it’s also an issue of education and that’s where many of us are failing. Our institutions will fight to protect the intellectual property “owned” by our institutions and our faculty will fight bitterly to protect their fair use rights in the classroom (even to the point of going too far and unethically ignoring copyright). But who fights for the students’ fair use rights? Who tells them that they even have those rights (certainly not the Boy Scouts and the MPAA)?

So that’s my weak tie-in with student affairs: legal rights and culture trampled and unmentioned by educators bullied into “doing something!” about students’ copyright infringement. That’s why I worry about NASPA’s recently-announced RIAA partnership. One could go further and accuse institutions of literally “selling out” but given that instititution have (a) paid money to employ many of these services and (b) acted primarily out of fear (of legislators, recording industry lawsuits, and bad public images) I don’t think that’s an accurate accusation to make. But there is certainly a discussion to be had about commercialism and its role in this debate as recording industry executives push the use of services that in turn pay the recording industry for the use of their music. There are legitimate ethical, moral, and legal issues but students aren’t the only ones who should be under the microscope.

Recent copyright & fair use news

Three recent items related to the issues of copyright, fair use, and how colleges and universities deal with and relate to those issues have appeared lately.

The first item is a revision of a white paper released in 2003 entitled “Background Discussion of Copyright Law and Potential Liability for Students Engaged in P2P File Sharing on University Networks.” This paper is a work of the Joint Committee of the Higher Education and Entertainment Communities; other works by this group, including related congressional testimony, can be found on the American Association of Universities website; materials related to the technology task force are hosted by EDUCAUSE. The white paper is a 20 page document summarizing copyright and potential student and institutional liability for student copyright infringement. It’s a pretty good summary of a pretty dense, complex, and (for most people) uninteresting topic. Despite InsideHigherEd’s headline labeling this paper as one about “File Sharing” it actually focuses more on the possible effects of illicit file sharing than on the technology or other issues. What the paper does not do, except for one brief section at the very end, is give concrete policy guidance to colleges and universities on how to confront this challenge. I don’t necessarily fault the task force for not tackling that in this paper; it’s not the purpose of this paper (but it is the purpose of this paper). Further, it’s a pretty complex topic with little research underlying and supporting or refuting the possible solutions. Unfortunately, I don’t think many people want to hear that “it’s hard;” they want answers and concrete recommendations. This is especially true of our legislators.

Speaking of legislators: since the Democrats will control the next session of Congress they will be in charge of all of the committees and subcommittees. Of particular interest is the leadership and composition of the House Subcommittee on Courts, the Internet, and Intellectual Property. The Democrats offer leadership to committees by seniority. So Howard Berman, representative of California’s 28 district, will have right of first refusal. As perhaps befitting one who represents many who work in or close to the film industry, he is a strong proponent of strong copyright laws and the rights of copyright holders. If he were to become chair of this subcommittee, the one that has taken the most interest in how universities and colleges respond to this challenge, I do not think he would be sympathetic. As our institutions are by nature slow to change, generally respectful of students’ rights and privacy (how many times have we told one another that “en loco parentis is dead!” ?), and extremely independent, we could be putting ourselves into a bad position with Rep. Berman as these traditional strengths could be viewed as resistance and refusal to act.

Finally, Cary Sherman, president of the RIAA, wrote a brief opinion piece for CNET News about the Consumer Electronics Association and other groups’ recently-announced “Digital Freedom” campaign. The title of the piece (“The farce behind ‘Digital Freedom'”) may have given some readers and those-who-don’t-want-to-read-a-Carey-piece a mistaken impression. I agree that Sherman’s organization has done and continues to do a lot of things wrong and significant and lasting damage to America through their actions and stances related to copyright. But his point in this particular article is completely valid: we, consumers and citizens, should be as cautious of those for-profit (and even the not-for-profit) organizations who wave the “Fair Use Banner” as we are of the large copyright holders. The “Digital Freedom” campaign is likely as much or more about meeting the financial needs of its members and sponsors as it is about protecting our rights. “The enemy of my enemy is my friend” is much too simplistic and naive to live by in real life, much less in politics.

Whither due process?

We’re all struggling with copyright infringment and our students’ changing views of and relationship with copyright. Although there are still some who have not made the necessary and proper investment in the equipment, training, and skills necessary to deal with most of the bandwidth issues (with a tiny handful throwing in the towel completely and outsourcing), most of us are doing okay except for the occasional blips and never-ending game of small-time “whack a mole.” Some (many?) have given up or never attempted to classify network traffic and instead give each resident a quota or percentage of the available bandwidth. Data on these particular practices are available but they’re not my focus today. The point is that the technical issues are largely black-and-white and most are solveable or already solved.

But the legal and ethical issues are unsolved and largely unsolveable. And I want to focus on one specific legal and ethical issue that I believe has been overlooked as colleges and universities have implemented their policies regarding and reactions to students’ alleged copyright infringement: due process.

Based on my experiences, interactions with others, and informal research, it appears to me that very few (if any) institutions afford their students due process when a student is accused of copyright infringement. I believe this stems from two phenomena:

  1. The actions that most institutions take when a student is accused, via a DMCA takedown notice, of copyright infringement are naturally motivated almost entirely or in large part because of the DMCA. Although some have tried to argue that the safe harbor provisions in the DMCA don’t really require institutions to do *anything*, I think most of us agree that the DMCA is pretty clear that we do have take some actions. However, few IT professionals are well-versed in the law (we even invented a well-used abbreviation to remind one another that “I Am Not A Lawyer”: IANAL). Even many of our legal counsels are not well-versed in copyright. I don’t blame either of those parties for not knowing the intricacies of this one branch of law but that lack of knowledge and familiarity engenders the most conservative of reactions and policies. It also encourages us to focus on this one issue without taking into account the larger context and history (because we don’t *know* the larger context or history – we’re unfamiliar with this, right?).
  2. At many institutions, these policies are crafted and enforcement takes place without meaningful (or *any*) input from student affairs administrators, including those familiar with similar legal or educational situations. In the specific case of copyright infringement, librarians or other professionals (at my current institution, our copyright “experts” work in Print Services where they help faculty obtain clearance for material to be used in course packets) may also be qualified to provide guidance. In short, although IT or ResNet may bear the brunt of this problem – see the traffic flow, receive the DMCA takedown notices, and track down the student associated with the reported IP address – there are many skills and areas of knowledge necessary to effectively and ethically confront this particular problem that IT professionals may not (and often do not) possess.

So what this usually results in is an automatic presumption of guilt for students who are named or whose computer is linked to a DMCA takedown notice. Nevermind the legal requirement that those who are accused of copyright infringement via a DMCA takedown notice must be affored the opportunity to file a counterclaim, a requirement that schools may or may not afford students or even inform them. The concern I have is that institutions do not afford students due process and assume they are guilty of copyright infringement merely because someone else has accused them of it. It doesn’t matter that most of the students *are* responsible for the alleged copyright (not “guilty;” this is often a civil issue – another complication to be addressed at a different time). Let’s also ignore the immense ethical and legal problems that many of these large copyright holders have encountered. Right now, I don’t even care that due process a legal principle with many years of history and significant case law. It’s an ethical imperative that we not assume our students are unethical or criminals based on the unchallenged word of an interested third-party.

If we take someone else’s word over our students with no investigation or affording our students any due process then we’ve already lost our students and failed to meet this challenge. Make no mistake – this is a much bigger issue than just songs and movies. But that’s where it has started and we meet this challenge one student at a time. If we treat them like automatically-guilty criminals then they’ll behave like criminals. How about we try treating them like adults, responsible for their own choices but also caught up in a much larger and morally ambigious situation? We have legal priniciples and guidelines to follow but we also have obligations as educators and mentors.