The Office of Information Technologies and Government Relations spoke with Congressional staffers in early June on the question of potential amendments to the Reauthorization of the Higher Education Act that would provide the Secretary of Education the authority to require colleges and universities to install content filtering technologies on campus networks to inhibit copyright infringement.
BACKGROUND ON FILE-SHARING AND COPYRIGHT ISSUES IN HIGHER EDUCATION
What Is the "Problem?"
Technology exists that allows anyone with a computer on a network system to copy and electronically distribute copyright-protected material such as movies, music, software, and games. Content owners, understandably concerned about protecting their copyrights, have targeted higher education's role as Internet Service Providers (ISPs) for special legislative treatment separate from commodity ISPs such as Verizon or ATT. Threats include legislation:
- Eliminating ISP immunity when acting as a conduit between non-institutional servers;
- Requiring colleges and universities to serve students with Digital Millennium Copyright Act (DMCA) notices of threatened legal action, and report alleged offenders;
- Implementing expensive technological devices on network systems that allege to filter out copyright holders' content.
What Have Colleges and Universities Done Already?
In the main, higher education has already gone above and beyond the law and the activities of commodity ISPs to address content owners' concerns. Some measures include:
- Acting on DMCA notices as a matter of policy and citizenship development for students, but not as a legal requirement;
- Implementing extensive educational programs including on and off-line orientation tutorials, lectures, and videos;
- Instituting disciplinary action towards offenders that include fines, community service, remedial education programs, letters in files, and community service;
- Exploring a variety of legal alternatives with some brand name services such as Napster 2.0, CDigix, and Ruckus;
- Manipulating "packet-shaping" technology that controls bandwidth to minimize peer-to-peer traffic;
- Instituting innovative network traffic billing systems (e.g. by the "byte") that have the effect of diminishing copyright infringement;
- In the case of some institutions, deploying technological devices that filter for content on their network systems.
What Should Congress Do?
Congress should do nothing at this time, unless it is willing to change copyright and ISP law for everyone, including commodity providers, and not just for higher education.
Why Shouldn't Congress Do Anything Specifically Regarding Higher Education?
There is no logical justification for treating higher education ISPs differently than commodity ISPs. Statistics show that peer-to-peer file sharing of copyright materials is increasingly occurring on commodity networks due to the large bandwidth broadband connections, and therefore proportionally less on higher education networks. Given this trend, it makes sense that Congress should either take action for all ISPs or for none, certainly not higher education alone.
What Is at Stake if Higher Education is Treated Separately?
There is no rational basis for treating higher education differently from commodity ISPs. Technological imperfections plague the proposed technological solutions that content owners and vendors of these products promote. Already burdened by regulations and rising costs, higher education should not be asked to bear the expense of purchasing and maintaining these products. Additionally, these products do not scale to large, distributed networks of research institutions and therefore might have a deleterious impact on the network computing, which would in turn hamper and restrict research.
Finally, the value of higher education to American society is at stake. Monitoring and filtering a network for content goes against all existing privacy law for electronic communications, and would probably require an exemption under the Electronic Communications Privacy Act if enacted for public networks. For colleges and universities, which require unimpeded speech and open inquiry in order to achieve its missions, the practice of monitoring its network traffic could have a chilling effect on teaching, research, and outreach. Higher education is the crown jewel of American society and its diversity a cornerstone of its strength. Government should not impose uniform regulations in areas where individual institutions should determine for themselves how and in what ways to address larger social problems that are in keeping with their own culture and traditions. Finally, higher education should not be singled out among Internet Service Providers throughout the country. Why discriminatorily restrict higher education when it plays a vital role in American society to train critical thinkers and advance discoveries and the progress of science?