Reactions to RIAA Pre-Settlement Letters And More

Some quick updates and links to discussions and news related to online copyright infringement:

  • Last week, the RIAA announced that it was beginning a new program where it would send alleged offenders a notice before suing them to offer them an early option to settle. This offer is sent to the university or college with the request to forward it on to the alleged offender. Cornell has sent a letter to its students trying to help them understand exactly what is going, how these new letters differ from DMCA takedown notices and other letters, and how Cornell is and is not responding. Some institutions are refusing to send these new letters on their students but others are complying with the RIAA’s request. Discussions are being held at and between many institutions concerning institutions’ legal and ethical obligations with respect to these pre-litigation letters. Should institutions pass on these letter to students in an effort to make themselves neutral? Do institutions have a legal obligation to pass on these letters? Must institutions retain logs as requested by the RIAA? It’s obviously a complicated issue with many ethical, legal, and financial facets.
  • Discussion continues about the role of copyright in a digital era. We may not all agree with UC Berkeley’s Larry Downes’ comparison with the Information Revolution to the Industrial Revolution and his assertion that “[Today’s] bloody fights are not over natural resources and access to emerging markets but over use and ownership of ideas.” But I do agree with his general premise and I further assert that in this particular instance higher education is being caught in an ugly squeeze between wealthy copyright holders struggling to maintain their grip on…well, anything they can continue to grip (income, market share, cultural influence, political influence, etc.) and a legal system still struggling to come to terms with a new economy that differs significantly from the old (and don’t think the old economy is going away – no, we have to deal with both of them at the same time). Let’s see what our friends in the House Subcommittee on Courts, the Internet, and Intellectual Property (yes, the same subcommittee that hold the campus piracy hearings) have to say in an upcoming hearing focused on reforming part of the Copyright Act “for the Digital Age.” They’ll be examining Section 115, the section that covers compulsory licensing of music, a task very similar to one in which Europe is engaged.
  • In preparing for the NASPA/ACPA 2007 Joint Meeting and the activities planned for and by the NASPA Technology Knowledge Community, I skimmed the Principles of Good Practice for Student Affairs. This is a relatively simple list of practices modeled after the original 1987 Seven Principles for Good Practice in Undergraduate Education. Although written before the coming-of-age of Napster and subsequent challenges related to online copyright infringement and reform, I am struck by how the opening sentences of the Introduction describe our current situation: “Today’s context for higher education presents student affairs with many challenges. Among these are new technologies, changing student demographics, demands for greater accountability, concern about the increasing cost of higher education, and criticism of the moral and ethical climate on campuses.”
    1. New technologies: This is a gimme.
    2. Changing student demographics: As noted by Cheryl Elzy in testimony before Congress, “The scope of the problem [is] national. It’s worldwide. It’s bigger than we’d first imagined and a significant problem, we think, for higher education. Frankly it’s a problem at all levels of education, including K-12.” The issue is not one of students learning this behavior in colleges and universities. It’s learned behavior they bring with them. While this is not a shift in demographics as some may think of it (race, ethnicity, SES, etc.), I assert that the increase in the number of students comfortable and familiar with technology and thus possessing skills and expectations is a demographic shift. There are interesting questions to ask about how the other more traditional demographic measures and characteristics interact with these emerging characteristics but let’s set those aside for now (but don’t forget those questions! They’re fascinating and important and we’re figuring out the answers.)
    3. Demands for greater accountability: At the heart of the legislative pressure for institutions to “do something” about this issue is a sense that institutions must be held accountable for what their students are doing with public and educational resources (open question: is there a discernible difference in the pressure being placed on or the reaction of private institutions?). Rightly or wrongly, we’re being held accountable for our perceived inaction and lack of concern and there is a push for us to be held accountable. Even when we (correctly) argue that enforcing someone else’s copyright is not our legal responsibility, law makers reply that they can change the law to make it our legal responsibility.
    4. Concern about the increasing cost of higher education: Interestingly, this concern is being felt most by institutions and not legislators. It’s an argument we correctly repeat when pressed on this issue: the solutions offered are very expensive. Do we continue to worry about the increasing costs of higher education at the same time we demand institutions purchase costly products and services to enforce someone else’s copyright and subsidize students’ desire for free music and movies? There’s a conflict there and a disconnect that I’m not sure has been fully explored.
    5. Criticism of the moral and ethical climate on campuses: Even many who do not believe it is not the legal responsibility of colleges and universities to enforce the copyrights of others believe that we have a moral and ethical obligation to dissuade students from violating copyright.   I’m not sure there is much room for argument as this is a reasonable belief consistent with the educational mission of most institutions.  However, there is room for discussion in how far and in what manner institutions should press this issue as the morality and ethics are certainly not black-and-white, particularly when shady groups like the RIAA become involved.

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.

NASPA Technology Knowledge Community

Earlier this week, NASPA approved a new Technology Knowledge Community. Within NASPA, Knowledge Communities are self-organized groups dedicated to particular topics or areas of knowledge. Knowledge Communities gain access to NASPA resources such as webspace, listservs, and limited funding for educational programs and resources. Apparently there was previously a Technology Knowledge Community but it folded after a few years after struggling to define itself and its focus. Leslie Dare published an article in Student Affairs On-Line entitled “Technology in Student Affairs: Seeking Knowledge, Craving Community” describing the previous NASPA Technology Knowledge Community and the need for it to be revived and reinstated. Several NASPA members, including myself, contacted Leslie after reading the article to offer our assistance. We recently organized ourselves, formalized our proposal, and submitted it to NASPA.

The NASPA Board of Directors unanimously approved our proposal during their December meeting. Leslie and I are co-chairing the Knowledge Community and busily trying to organize the rest of the leadership. Putting together the leadership team is a rather bureacratic process involving many people from across the nation; I’m sure it works once it’s in place but it’s a bear to get set up initially.

We’ll likely have an open meeting at the 2007 ACPA/NASPA Joint Meeting in Orlando among other opportunities to publicize this new group. I don’t think we’ll have trouble attracting interest or members but we must carefully define our scope and define our focus lest we suffer the same fate as the previous Technology Knowledge Community. We’ve got some ideas on how to do that but we don’t have much time before the Joint Meeting to get those ideas rolling.  I’m really eager to get past these initial steps so that we can to the business at hand and use NASPA’s resources to collaborate with one another on common challenges and interests involving student affairs and technology.

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.

Inspired by Rejection? Or Merely an Idea Whose Time Has Come?

Like several hundred other ACPA and NASPA members, I submitted a program proposal for the upcoming Joint Meeting. Like many other programs, the main topic of my proposed program was Facebook. My program specifically centered on two points:

  1. Introduction and discussion of relevant historical and contemporary computer-mediated communications (CMC) research. This is important not only to bring home the point that this emerging phenomenon is not as new or emerging as many people think it is (relevant research has been conducted for several decades) but also to illuminate particular findings of interest to student affairs practitioners.
  2. Discussion of proposed linkages between CMC research and student development theory.

In September, NASPA published a paper (article only available there to NASPA members; download it from my website here) that I wrote several months ago in their e-zine NetResults. In this paper, I laid out thoughts rem,similar to the ones I was proposing to layout and expand in this program. I’m pretty confident that my thoughts are important, original, and significantly contribute to the community and its understanding of this perceived new challenge.

My program proposal was rejected. Although I am stung by this rejection, it’s not so much the rejection that bothers me. My primary concern is that there was consideration given for balance, diversity, and creativity in those programs that were approved. I reviewed programs this year and I don’t recall any of the programs that I reviewed as being heavily based in theory; to the contrary, the programs I remember reviewing were heavily based in recent experiences with some including only a token mention of theory or relevant scholarship. I also know another person whose *incredibly cool* theory- and original research-based technology proposal was also rejected. These scant (!) data points combined with my own experiences are enough to make me start wondering about the value that these professional organizations place on original research and theoretical constructs that are related to technology.

Eric Stoller echoes some of my thoughts in a blog entry in which he writes: “Can someone please inform ACPA and NASPA that technology is not an ’emerging discussion.’ It is this kind of language which causes student affairs administrators to remain stuck in 1995.” In another entry he discusses an online professional development course he (accurately, judging from the description) labels a “fear session.” His question “Why do we not think holistically about technology?” is a fantastic question that I believe most have at best ignored and at worst disdained. Eric is presenting a session at a two-day professional development opportunity in January but judging by the titles of some of the other sessions (“Virtual Affliction: Understand the Power and Addiction to the Internet” and “Crossing the Line Online: How Cybersex, Cyberaffairs, and Pornography live in the shadows of the Net”) it’s clear that we have a lot more work ahead of this to counterbalance these fear sessions.

I know there’s a lot of interest in the student affairs world in practical experiences and discussions but I really think we can (and in many ways are working to) back ourselves into a corner unless we remain open to wider viewpoints. We owe it to those who have come before us to apply what they discovered to emerging phenomena. Consciously and deliberately applying these old theories to new phenomema and situations allows us to measure what we know of new phenomena using measuring sticks of known length. Further, it allows us the unique opportunity to reevaluate our assumed and received knowledge and, as appropriate, build on and modify that knowledge.

I assert that, like nearly everyone else, our viewpoint is rather narrow. What we view as emerging and new phenomena are rarely as emerging or new as we may believe. Most are, like all other inventions or innovations, built on earlier works. And guess what? There are pretty good odds that several people have conducted significant and insightful research focused on those earlier works! The works and insights by danah boyd, Fred Stutzman, Nicole Ellison, and others did not spring forth from their head fully-formed and -armed like Athena from Zeus; like other scholars, they have built on what has come before them (the “References,” footnotes, and endnotes ain’t there to pad their papers!).

And that’s all I want to do: build on what others have built before me. Those others may not necessarily be or have been student affairs practitioners, student development researchers, or higher education scholars. Some are psychologists, sociologists, or IT practitioners. Some ply their craft in communications, new media, informatics, or information science. But they’ve all discovered and proposed insights that can help us understand what are to us “emerging phenomenon” because to them it’s old hat and merely the next step in an evolution they’ve been tracking for a long time. We, in turn, can contribute our hard-earned understanding of young people and the pervasive culture of higher education to view their findings in the unique lens of our own education and experiences.

If this sounds like a deep insight or a desperate plea to link these disparate fields, it’s not. It’s merely an idea whose time has come. Some are undoubtedly already doing it. Some have already done it. If they’re out there, I want to find and join them – it sounds like a lot of fun!