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Inside Higher Ed has reported, this bill includes one section that is identical to Reid’s contentious and subsequently withdrawn amendment.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.

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.

Another Congressional Hearing on P2P Scheduled for Tomorrow

Last week, The Chronicle told us that the House Committee on Science and Technology will be holding a hearing on peer-to-peer filesharing on college and university campuses. That hearing, entitled “The Role of Technology in Reducing Illegal Filesharing: A University Perspective” has been scheduled for tomorrow afternoon at 2:00 EDT. The Hearing Charter (pdf) is a very good, relatively unbiased summary of the issue and related challenges. Aside from the continued use of the word “piracy,’ (yes, I know we’ve lost that battle), the only major gripe I have with the document is the uncritical acceptance of “piracy loss” figures from the industries and their “research.” Four of the five witnesses are university administrators, including Cheryl Asper Elzy who is involved in Illinois University’s Digital Citizen Project; the fifth witness is the president of Audible Magic.

There is what appears to be a link to view the hearing live using Real Player or a compatible player.

Update: The video of the panel is now online as are the chairman’s opening statement and the written testimonies of each of the witnesses:

  • Rep. Bart Gordon, Chairman
  • Dr. Charles Wight, Associate Vice President for Academic Affairs and Undergraduate Studies of University of Utah
  • Dr. Adrian Sannier, Vice President and University Technology Officer of Arizona State University on leave from Iowa State University
  • Mr. Vance Ikezoye, President, CEO ofAudible Magic Corporation
  • Mrs. Cheryl Asper Elzy, Dean, University Libraries of Illinois State University and Management Team member of ISU’s Digital Citizen Project
  • Dr. Greg Jackson, Vice President and Chief Information Officer of the University of Chicago

This hearing was much more balanced that the recent one held by the Judiciary Committee. Most of the committee and all of the witnesses agreed that not only is there not a 100% effective technological solution to this challenge but that education must also be a component. Mrs. Elzy noted that not only is technology not the only answer but that too much reliance on technology could actually harm other efforts. The current offering of legally-available music and movie options were severely criticized by witnesses as failing to meet consumers’ demands and driving much of the copyright infringement. In his opening statement, Dr. Jackson said that current offerings meet consumers’ needs “inconsistently, incompatably, inefficiently, inconveniently, and incompletely.” Dr. Sannier noted that the single biggest step forward in meeting this challenge is the development of DRM-free music legally available for purchase; he later reinforced this point when he told the committee that his campus’ current product, Ruckus, does not work with students’ iPods thus undermining its usefulness. Fair use was strongly defended by witnesses, most memorably by Dr. Sannier who asserted that “if we were to allow stringent enforcement of copyright to erode fair use, the country as a whole would be much the worse for it.”

Two of the more bizarre or harsh incidents in this hearing both came from congressmen. In comparing this challenge to immigration and the money necessary to secure the border, Rep. Hill (D-IN) asked if we should also be willing to spend what it takes to meet this challenge. He then stopped this line of questioning by reminding the witnesses that they knew where that money is going to come from; I wish he had told us because I was completely baffled by this comparison and that statement. The harshest moment came when Rep. Feeney (R-FL) reminded the witnesses that not is he also on the Judiciary Committee but they are still taking this issue very seriously and that they will not “be patient for long with universities that have not been aggressive” in addressing this challenge. He also expressed his disappointment that some of the witnesses had, in his opinion, minimized the role of technology, a charge that the witnesses refuted.

I’ve uploaded my messy, incomplete, and hastily scrawled transcript if anyone would like to wade through it to pick out other gems. I think I’ve covered the meat of the hearing above but you’ll only get it all if you watch the hearing (you can skip the first 30-35 minutes if you read the witnesses’ opening remarks).

Update 2: Inside Higher Ed and the Chronicle have provided their takes on the hearing.

Quick Copyright Update: Congressional Questions, Resistance, Peer-to-Peer banned, and More Lawsuits

The past few days have been busy on the copyright front:

  1. Members of Congress have sent a detailed questionnaire to 19 (or 20) institutions asking about their policies and practices related to students’ alleged online copyright infringement. The questionnaire is preceded by an unambiguous statement of disapproval of current policies and practices coupled with statistics of the damage supposedly done by file sharing (they’re based on shaky and extremely biased “research” but Congress has bought it all – hook, line, and sinker). These institutions are now in a very bad position as they are under a very bright spotlight. The questionnaire is quite biased but an institution that ignores questions, supplies evasive answers, or declines to respond will likely place itself in a very unfavorable political position. The questionnaire contains at least one really interesting question asking about cable television in residence halls and how it is funded; presumably this question is aimed at exposing the hypocrisy of institutions that refuse to pay for online entertainment services but are happy to pay for cable television. It’s a very interesting and relevant question and I am curious to see how institutions will respond.
  2. Charles R. Nesson and Wendy M. Seltzer have written an editorial in The Crimson stating that Harvard should be “assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us…deploying our clinical legal student training programs to defend our targeted students [and] lobbying Congress for a roll back of the draconian copyright law that the copyright industry has forced upon us.” Nesson is William F. Weld Professor of Law at Harvard Law School and the founder and faculty co-director of the Berkman Center for Internet & Society. Seltzer is a Fellow at the Berkman Center for Internet & Society and a staff lawyer at the Electronic Frontier Foundation.
  3. The RIAA has made good on their promise to sue students who do not take up their offer to settle out of court.
  4. Ohio University, named the university receiving the most DMCA takedown notices from the RIAA in their recent Top 25 list, has banned peer-to-peer technology. They claim the ban is working.

Those interested in following these and other updates as they occur are encouraged to monitor Rey Beckerman’s Recording Industry vs The People and The Chronicle’s The Wired Campus blogs.

Legislative Action Aimed at On-campus Peer-to-Peer and “Piracy?”

We can’t and shouldn’t forget that Representative Ric Keller told us during the March House Judiciary Subcommittee on Courts, the Internet and Intellectual Property hearing on campus peer-to-peer and “piracy” that “the hammer’s comin’.” Shortly after that hearing, Keller, who is also the senior Republican on the Subcommittee on Higher Education Lifelong Learning & Competitiveness, introduced the Curb Illegal Downloading on College Campuses Act of 2007. It’s clear that at least one member of congress is serious about addressing (and forcing us to address) this issue.

In the closing sentence of their March 12 news story about the the American Council on Education (ACE) noted that “it is possible that further discussion of file sharing on campus will be folded into debate of the reauthorization of the Higher Education Act later in the legislative session.” Rumor has it that this may be coming true as the Senate and the House continue to work on the latest incarnation of the Higher Education Act (HEA). Even more foreboding, there may be reconsideration of the current safe harbor protections offered under copyright law; Representative Schiff forcefully and pointedly reminded us in that hearing that Congress wrote the copyright laws and they can change them.

These could be mere rumors. Even if they are true, they have to run a gauntlet through a bitterly partisan congress and make it onto the desk of a president of a different party than the congressional majorities (even though this issue is a bipartisan issue – Keller and Schiff sit on opposite sides of the aisle, for example – making this part of an omnibus bill like the HEA may place it squarely in the domain of partisan politics). We’ve certainly seen enough ineffective action related to the HEA over the past few years to know that it’s far from certain that anything will actually be done. But they appear to be serious this time and getting more serious as the copyright holders continue to press this issue and make our efforts and concerns appear to be hollow. The hammer may be comin’ and it may be buried in the HEA.

Impact of Anti-Social Networking Website Legislation on Higher Education

We’ve seen and are continuing to see attempts by state and federal legislators to restrict the use of social networking sites like Facebook and MySpace on computers with Internet access funded by the (state or federal) government. Although DOPA was not passed into law last year, Sen. Stevens introduced a similar law earlier this year. State legislators in Connecticut and Illinois have introduced similar legislation.

I am neither a lawyer nor an experienced policy junkie so my understanding of the detailed specifics of these proposed laws is likely incomplete and possibly outright wrong in some areas. As best as I can tell from reading the bills and the media reports surrounding them, the federal bill, the Protecting Children in the 21st Century Act, requires that minors not be allowed to use computers with Internet access funded by the federal government (e-rate) to access “social networking websites” and “chat rooms” without parental permission. Connecticut’s law levies a $5,000 fine on social networking websites that fail to verify the age of participants and require parental permission for minors to participate. Illinois’ proposed law is the most stringent; it requires that “each public library must prohibit access to social networking websites on all computers made available to the public in the library [and] each public school must prohibit access to social networking websites on all computers made available to students in the school.”

As a university administrator, I wonder if we have paid enough attention to these and similar proposed laws to gauge their impact on our pre-matriculation programs. In other words, would these proposed laws have an impact on online orientation or similar programs that are aimed at applicants, interested high school students, and other minors? The answer seems to be a clear “yes” for those institutions whose programs have taken on characteristics of social networking. However, the precise definition of “social networking website” has yet to be crafted; for the federal law, it will take into account if the service:

  • is offered by a commercial entity
  • permits registered users to create an on-line profile that includes detailed personal information
  • permits registered users to create an on-line journal and share such a journal with other users
  • elicits highly-personalized information from users
  • enables communication among users

For some of the proposed bills, requiring that the users supply proof of their age and secure parental permission for minors to participate would satisfy the legislative requirements. That seems like a low bar for colleges and universities, particularly if the users are those who have already applied to the institution and thus already supplied proof of age; it’s only one more bullet point on the application form signed by the applicant and, if necessary, mom or dad. Of course, this completely dodges the question of how the laws would actually be enforced in libraries and schools, how easy it will be to overcome the necessary technological filters and restrictions, what evidence would be necessary for librarians or teachers to allow minors to access social networking sites, etc.

The primary concern of many who perform research into youths’ use of social networking sites is the disparate impact this legislation would have on youths whose primary Internet access occurs at school or the library. That concern should hold true for college and university administrators as this proposed legislation would have a negative and disproportionate impact on prospective students with a low SES. It seems to me that this legislation may strengthen continued concerns about the widening SES gap in America between those attend college and those who do not. Further, this proposed legislation may harm efforts to attract students with low SES and help them fit into the college environment in that crucial first year.

Colleges and universities must monitor this area of legislation. Not only does it impact current and developing programs such as online orientation programs and cutting edge recruiting efforts, it may intertwine with the continued debates about widening SES gaps and efforts to shrink those gaps.

Congress is Unhappy With Higher Ed’s Copyright Infringement Activities

The written testimony and video of today’s Congressional An Update – Piracy on University Networkshearing have been posted online. The video is pretty low quality Real video but it’s there and I appreciate the quick response on the part of the Congressional staffers responsible. The witnesses (with links to their written testimonies) were:

  • Jim Davis, Associate Vice Chancellor for Information Technology of the University of California Los Angeles
  • Gregory J. Marchwinski, President and Chief Executive Officer of Red Lambda
  • Cary H. Sherman, President of the Recording Industry Association of America (RIAA)
  • John C. Vaughn, Executive Vice President of the Association of American Universities

The general tone of the hearing was one of disappointment on the part of Congress. They are unhappy with our perceived lack of progress addressing this issue (Keller (R-FL): “The hammer’s comin’.”). In particular, they are unhappy with the lack of progress of the Joint Committee of the Higher Education and Entertainment Communities.

This hearing largely focused on the available technologies to mitigate copyright infringement on college and university campuses. The points made and questions asked by the congresspersons revealed several fundamental misunderstandings of the technology and related issues. Congress was emphatic in their belief that not only should we be doing something (Coble (R-NC): “The ability to do something is not commensurate with the right to do it. And those who have the ability to prevent such behavior have a moral, ethical, and – I believe – the legal obligation to do so.”) but we are not doing enough.

Representative Berman (D-CA), chairperson of the subcommittee holding the hearing, opened the hearing by stating: “There is little debate about piracy’s devastating impact on the economy.” Really? There’s certainly debate about the impact of copyright infringement, particularly the nature and amount of the impact. We don’t all accept the biased word and calculations of the copyright holders but we shouldn’t be surprised that Hollywood’s representative (Berman represents California’s 28th district) takes such a strong stand on this issue. But I think everyone can agree that lots of people are breaking the law and it’s having a negative financial impact on many copyright holders even if we disagree on the particulars.

The topic that seemed to confuse the congresspersons the most is a belief that there really is a magic bullet technology that can detect copyright infringement on a network while respecting privacy and preserving academic freedom. Several members even asked about watermarking technology and seemed to believe that technology is a promising solution. I don’t know why none of the witnesses explained that this is a problem that technology can not solve. In a most basic sense, copyright law is too nuanced for a computer program to tell the difference between authorized and unauthorized distribution. Between legitimate purchases, time and space shifting, and fair use, computers don’t stand a chance of being able to accurately tell the difference between legal and illegal file transfers. Further, as mentioned at least once by a witness, this is an arms race we can’t win. Once files are encrypted, packet inspection becomes impossible. We can rely on other techniques but it’s an arms race and there are a whole lot more smart students than there are talented network admins. One of the congresspersons even read the sales literature of some new network technology that sounded like magic and he appeared to but it hook, line, and sinker.

One issue raised a few times is a report on file sharing on college campuses by the Government Accountability Office (GAO). The GAO has not publicly released the results of their survey but apparently only half of the institutions contacted participated. Respondents were not promised confidentiality and results were not promised to be reported in the aggregate. In other words, individual institution’ responses were to be reported and linked to the respondents. Not only were congresspersons unhappy with this response rate, they also asked if institutions would respond to another survey (“with conditions” i.e. perhaps promise confidentiality this time).

Some of the proposals floated by the congresspersons in this hearing are quite scary. I don’t know how many of them were idle speculation intended to scare the witnesses and higher education. Berman said that the current law isn’t giving institutions enough incentive to act so he might have to investigate changing the exemptions given to universities under copyright law and add conditions to those exemptions. Similarly, Schiff (D-CA) said that congress could narrow safe harbor by requiring best effort or technology designed to address this problem since some institutions are not taking adequate action. He further asked witnesses what they thought about empowering local law enforcement to act on copyright issue. Jackson Lee (R-TX) agreed with Sherman that institutions haven’t done enough and said that if institutions were to charge students a fee for music it might be a “stop-gap” to legislative fixes.

Several congresspersons emphasized their belief that colleges and universities have a duty to teach citizenship and ethics to undergraduate students. Rep. Sherman said in his opening statement that “Business ethics education starts with undergraduate education. I believe that the leaders of the WorldCom and Enrons of the future will be educated at those schools that deliberately facilitate the theft of intellectual property.” Feeney (R-FL) began his questioning by noting that citizenship and character-building are an important part of college; he then compared institutions that do not enforce their policies with China and their lack enforcement of intellectual property laws (which is a bit extreme but the point about institutions failing to enforce their own policies is a good one and was repeated a few times by different people).

Sherman was asked how the RIAA decides to sue a student and if warnings are issued to the student and university beforehand. A very similar question was asked on Wednesday during the copyright-related EDUCAUSE Live! presentation. Unfortunately, Sherman danced around the topic and failed to provide an answer beyond “we send lots of DMCA takedown notices.” However, another point Sherman visited a few times was an excellent one. He once presented it by saying: “The transition from physical to digital has completely altered the way we live our lives. Shouldn’t these changes be reflected in schools’ message to students? Colleges are charged with educating our citizens. Isn’t it essential they prepare them to use appropriately the technology that will fill their lives?” He’s right – we should be doing more to recognize the shifts taking place and addressing them.

Concrete actions or requests described by Berman throughout the hearing included (a) a request that the MPAA release a list similar to the “Top 25” list recently released by the RIAA, (b) a request that the RIAA (and presumably the MPAA) release an updated list in 6 months to see if the list has changed, and (c) another hearing in 6 months to gauge progress, particularly related to the forthcoming recommendations by the Joint Committee and the subsequent adoption of those recommendations. As already noted, several congresspersons indicated a strong interest in forcing higher education to “deal with” this issue and do so quickly. Their patience appears to be running out.

Update: The Chronicle’s technology blog has a similar article about this hearing.