Piracy wars

The College Opportunity and Affordability Act is a multi-tentacled, 747-page piece of legislation dealing with higher-education funding and financial aid.

But three pages buried in the middle of this bill, currently being debated by the U.S. House of Representatives, jump out at students and college employees, who argue that they are being scapegoated over the ongoing problem of music and film piracy. They worry that universities will lose federal funding if they fail to take sufficiently aggressive action against students who illegally share copyrighted files.

The legislation, co-sponsored by South Texas-based Congressman Ruben Hinojosa, targets colleges and universities by making the argument that “a large share” of illegal file sharing occurs on campus networks. It’s a questionable theory, according to Steve Worona, director of policy and networking programs with EduCause, a non-profit group that deals with information technology in higher education.

Worona points out that the Motion Picture Association of America estimates that 44 percent of illegal file sharing occurs between college-age students. “We don’t believe that 44-percent figure, but even if it were true, it doesn’t take into account the fact that 80 percent of college students live off campus, so at most 20 percent of that would have anything to do with campus networks,” he says.

That would suggest that less than 10 percent of infringing activity occurs on college campuses. It begs the question: Why is Congress putting pressure on colleges and universities when, by any fair reckoning, more than 90 percent of internet piracy is happening on commercial Internet Service Providers? Why aren’t similar concerns being raised about commercial ISPs?

“Campus networks are the only networks that are taking this problem seriously,” Worona says. “The commercial ISPs are competing with each other using advertising phrases such as ‘Download large files fast,’ and ‘Access lots of music from the internet,’ without even the kind of asterisk that you see in beer ads, that say, ‘Please drink responsibly.’ Whereas on campus, as soon as a freshman arrives, the first thing they hear is that if they do that sort of thing on campus, they’ll be punished.”

Worona’s contention is echoed by Diane Graves, Trinity University librarian and designated copyright officer. She says that warnings about copyright infringement and internet piracy are part of the orientation process for every freshman who enrolls at Trinity. Like Worona, she suggests that colleges are perversely being penalized for their dedication to solving the piracy problem.

“My biggest concern about this is that we in higher education have not done a great job of talking to the Congress about what we’re doing, but the entertainment industry has done a fabulous job of talking to the Congress, so it’s pretty much a one-sided presentation that’s gone on,” Graves says.

Tensions are currently so high between lawmakers and educators on this issue that they can’t even agree on the meaning of this new legislation. University representatives see the bill as a series of Draconian mandates, disguised as innocuous guidelines. In their view, the bill requires educational institutions to provide music-subscription services (such as Rhapsody and Ruckus) to their students, and employ filters that block peer-to-peer file sharing.

The legislation’s language certainly leaves plenty of ambiguity. Colleges are “required to inform their students about the law and campus polices on copyright infringement,” something that many institutions are already doing. The bill also requires colleges to “report their campus policies” on this issue to the Department of Education once a year. Either of these provisions could be viewed as pointless regulation, but they don’t pose a serious threat to campus networks.

The big concern comes from the bill’s demand that colleges “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property” and “a plan to explore technology-based deterrents to prevent such illegal activity.”

To campus technology experts, this sounds like code language for subscription services and filters. Rachel Racusen, spokeswoman for the House Education and Labor Committee, refutes that argument.

“The provisions do ask colleges, to the extent practicable, to develop plans for offering students alternative legal ways to file share, as well as plans to prevent file-sharing, but this would not be included in the financial aid program participation agreements colleges enter into with the U.S. Department of Education. Contrary to what critics are saying, these provisions would not put students or colleges at risk for losing financial aid,” Racusen says.

The key phrase there is “to the extent practicable.” How stringent will the Department of Education’s reading of that phrase prove to be? Students and educators would rather not find out.  

A university contract with a subscription service would probably pass the cost on to students, making them pay for
material they may not want. “By and large, students find that these services don’t meet their desires for commercial music,” Worona says. “Many of them don’t work on iPods. With many of them, the music isn’t portable. Some of them don’t have the range of selections that students want. It seems inappropriate to mandate that universities sign on to particular commercial services by Congressional edict.”

Technology filters are also expensive, and they raise all kinds of First Amendment concerns because they tend to block legal uses of peer-to-peer sharing often helpful in the research process. “They aren’t very effective when they get installed, and they get less effective over time. Therefore, they need to be replaced or upgraded, and you get into an ongoing arms race. It’s not a good use of university resources,” Worona says.

Resentment over the issue comes from the perception among many educators that they’re being singled out for a broad, societal problem, as a way of appeasing the film and recording

Tracy Mitrano, director of information technology at Cornell University, says that when the internet emerged in the 1990s, a legitimate argument could be made that college campuses were the epicenters of illegal file-sharing, simply because campus networks were practically the only providers with the necessary bandwidth. Since then, however, the growth of broadband internet service in the United States has predictably broadened the scope of internet piracy. For some reason, however, Congress has not broadened the scope of their piracy battle.

“I’ll go out on a limb to say that content owners would never have to create another movie, another song, another video, or another piece of software, if they could get liability out of the ISPs for copyright infringement. That’s where the real deep pockets are,” Mitrano says. “We may be the canaries in the coalmine. We may be the easy targets for content owners to be pushing a greater degree of ISP liability for copyright infringement. We would be the first run of that kind of activity.”