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Educators Forced to Become MPAA's Cops

By Senior Copyright Counsel, Google Inc.

On July 30th, the House and Senate conferees approved the Higher Education Act reauthorization conference report, H.R. Rep. 110-803, to H.R. 4137. The bill, expected to become law soon, includes the College Opportunity and Affordability Act. Some may recall efforts last year to condition federal aid to universities on those institutions employing filtering technology. Senate Majority leader Harry Reid would have also mandated that the Secretary of Education compile a 25 ?worst offenders" list of those schools with the highest levels of illegal P2P file sharing. The idea wasn?t original, MPAA had already compiled its the top 25 list. MPAA head Dan Glickman put out this press release at the time:

Some college students are abusing powerful taxpayer funded computer networks to download and distribute movies and other copyrighted material which is why we are committed to working with universities to develop and implement plans to address this problem. We commend Senator Reid for his leadership in getting this important legislation passed through the Senate which will help encourage universities to do more.

At the time, Mr. Glickman estimated that downloading at universities cost the industry $500 million annually. Why not the Austin Powers ONE BILLION DOLLARS? Apparently members of Congress later failed to read the MPAA?s January 2008 admission that its numbers in a commissioned survey about the extent of alleged unauthorized file sharing on campus were way off, the result of alleged ?human error.? But even the new number was phony and also failed to take into account the fact that most students live off campus.

This raises one of the features of Washington DC that rightly baffles those outside the Beltway: how is that a trade association gets an issue so wrong, but then still manages to get legislation passed that addresses a non-problem that the association deliberately concocted? The answer, supplied by Mr. Glickman, is: leadership.

MPAA?s initial efforts were defeated fortunately, and the history of the bill during late 2007 and early 2008 is recounted in a series of very informative posts by Anne Broache for Cnet here , here, and here. Congress, in the bill that just passed, instead of mandating filtering and bad boy lists, mandated various requirements for educators to undertake, all of which involve spouting MPAA and RIAA?s propaganda. Here are the relevant pages from the Joint Explanatory Statement of the Managers in the Conference Committee report describing the requirements:

Institutional and Financial Assistance Information for Students.

The Senate amendment and the House bill require institutions to make available to current and prospective students the institution of higher education's policies and sanctions related to copyright infringement, including a description of actions taken by the institution of higher education to detect and prevent the unauthorized distribution of copyrighted materials on the institution of higher education's technology system.

Both the Senate and the House recede with an amendment to replace language in (iv) with language requiring institutions to make available the development of plans to detect and prevent unauthorized distribution of copyrighted material on the institution of higher education's information technology system which shall, to the extent practicable, include offering alternatives to illegal-downloading or peer-to-peer distribution of intellectual property, as determined by the institution of higher education in consultation with the Chief Technology Officer or other designated officer of the institution.

The Conferees have combined elements from both bills to require institutions to advise students about this issue and to certify that all institutions have plans to combat and reduce illegal peer to peer file sharing.

Experience shows that a technology-based deterrent can be an effective element of an overall solution to combat copyright infringement, when used in combination with other internal and external solutions to educate users and enforce institutional policies.

Effective technology-based deterrents are currently available to institutions of higher education through a number of vendors. These approaches may provide an institution with the ability to choose which one best meets its needs, depending on that institution's own unique characteristics, such as cost and scale. These include bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices, and a variety of commercial products designed to reduce or block illegal file sharing.

Rapid advances in information technology mean that new products and techniques are continually emerging. Technologies that are promising today may be obsolete a year from now and new products that are not even on the drawing board may, at some point in the not too distant future, prove highly effective. The Conferees intend that this Section be interpreted to be technology neutral and not imply that any particular technology measures are favored or required for inclusion in an institution's plans. The Conferees intend for each institution to retain the authority to determine what its particular plans for compliance with this Section will be, including those that prohibit content monitoring. The Conferees recognize that there is a broad range of possibilities that exist for institutions to consider in developing plans for purposes of complying with this Section.

Numerous institutions are utilizing various technology based deterrent in their efforts to combat copyright infringement on their campuses. According to a report of the Joint Committee of the Higher Education and Entertainment Communities, many institutions of higher education have taken significant steps to deal with the problem. Indiana University, for example, hosts an extensive "Are you legal?" educational campaign for students on the issues, and enforces campus policies on proper use of the network. It acts on DCMA notices by disconnecting students from the network and requires tutorials and quizzes to restore service. Second offenders are blocked immediately and are sent to the Student Ethics Committee for disciplinary action.

Audible Magic's CopySense Network Appliance provides comprehensive control over Peer-to-Peer (P2P) usage on a university's network. The CopySense Appliance identifies and blocks illegal sharing of copyrighted files while allowing other legitimate P2P uses to continue. It filters copyrighted P2P content by sensing an electronic fingerprint unique to the content itself, which is very similar to the way virus filters operate.

Red Lambda's "Integrity" is a network security solution dedicated to the management of file-sharing activities via protocols like P2P, IM, IRC, and FTP. This technology is able to detect all P2P, OS file-sharing, FTP, IM, proxy use, Skype and application tunneling over HTTP, HTTPS, DNS and ICMP protocols.

The University of Maryland, College Park, severely restricts bandwidth for residential networks and block certain protocols. It designed "Project Nethics" to promote the responsible use of information technology through user education and policy enforcement. A third violation can result in eviction from the university housing system. Montgomery College in Maryland enforces an Acceptable Use Policy on its wired and wireless networks.

Additional existing technological approaches can deter illegal file sharing by automatically processing notices sent by scanning vendors then taking actions such as messaging the user via browser redirection, applying the appropriate sanction and automatically re-enable browsing after a timeout or reconnect fee is paid. Other institutions use technology to appropriately manage their campus networks by limiting and/or shaping bandwidth, such as Packeteer's packet shaping technology.

This statement, in all likelihood written by MPAA, is extraordinary in many respects, especially for its detailed endorsement of private sector products. No general principles here like the text of the bill, and that of course is one of the abuses of legislative history that Justice Scalia and others rightly complain about: the tenor of the legislative history would never have been able to pass as legislative text. But the legislative history was inserted to serve a long-term agenda: there is likely to be an effort in the next Congress to mandate these technologies. The MPAA, with figures no better than the ones they retracted, will complain about universities? alleged failure to be MPAA?s cops, and will lobby for mandated use of technologies, along with forfeiture of federal funding for not doing so. Why not throw in a 10 year federal prison term (no parole in the federal system, btw) for the President of a University that isn?t up to snuff. Or, how about adopting Sarbanes-Oxley for university officials who will have to swear on penalty of perjury (and imprisonment) that they have fulfilled MPAA?s requirements?

Where is Joseph Welch when we need him? As recounted on the Language Log:

On June 9 in 1954, [Joseph] McCarthy was pursuing a somewhat peripheral vendetta against the Army over the drafting of a member of his staff. The vendetta had already dragged through over thirty days of Congressional hearings. At one point, out of sheer malice, McCarthy decided to place into the record the quite gratuitous information that the law firm representing the Army, Hale and Dorr of Boston, employed a young lawyer, Fred Fisher, who ? though he was by this time a Republican ? had once (in law school and for a few months thereafter) belonged to a chapter of a leftist organization, the Lawyer's Guild.

Fisher was not even on the team that was representing the Army in the case at hand in Washington; he worked in the Hale and Dorr's Boston office and had nothing to do with the case at hand. But his career could well be over if he was publicly smeared as a communist, and that would be a blow McCarthy could strike against the senior Hale and Dorr attorney who was representing the Army, Joseph Welch. As McCarthy launched into the speech that would place it on record that Fisher had been in the Lawyer's Guild, Welch went on the offensive, arguing against him fiercely, castigating him personally ("Until this moment, Senator, I think I never really gauged your cruelty or your recklessness"), begging him not to go on. "Let us not assassinate this lad further, Senator; you've done enough," he cried; and as McCarthy showed that he was going to go on regardless, Welch added: "Have you no sense of decency, sir? At long last, have you left no sense of decency?".

Full post as published by The Patry Copyright Blog on July 30, 2008 (boomark / email).