Thanks for taking the time to listen to my concerns about a couple of intellectual property-related clauses in the current draft of the Higher Education Act reauthorization scheduled for markup on Wednesday. At the moment, I'm actually writing from Cambridge, MA where I'm completing my Masters degree at MIT focusing on telecommunications policy and the public interest. However, my interest in the effect of communications regulation on higher education began at Calvin, where I earned a dual-degree in Computer Science and Philosophy. Among other things, while at Calvin I hosted a campus-wide debate on web filtering technologies.
The language in question is on pages 411-412 in the current draft: "Sec. 494. Campus-Based Digital Theft Prevention". The intention here is good -- to curb copyright infringement that takes place over campus networks. The problem is that the mechanism is 1.) mandating questionably effective technical measures to solve this problem and 2.) inequitably punishing all students at any school that is deemed to have not met this poorly defined standard. Specifically, all students would lose their federal financial aid. With respect to the technical measures, the draft calls for "alternatives to illegal downloading" and "technology-based deterrents". The "alternatives" are likely to be a handful of overly restrictive services already available over the internet on college campuses. The "technology-based deterrents" are particularly troubling because they threaten substantial collateral damage to legitimate academic activities (see for example the letter from MIT that I have attached). Technology cannot exercise fine-grained discrimination of data based on the nuanced details of the law (not to mention important carve-outs targeted at "fair use" specifically for academic purposes).
On balance, these clauses seek to defer copyright enforcement to universities rather than the copyright holders themselves. They do so by ham-handedly pushing imperfect technological solutions on our institutes of higher education -- incurring substantial academic and financial costs. I hope that the committee will recognize that this is a poor solution to a real problem that deserves much more exploration.
Here is some other coverage of the bill:
[Update 11/15: The bill has passed in committee without amendment to the offending language, so the battle now goes to the House floor. Ehlers' staff was nice enough to get back to me, and I sent them this response:]
Thanks for your timely and helpful reply. I was disappointed to see the bill pass in committee this morning without proposed amendment of the provisions or debate on their merits. I did see the one-page document published by the committee, purporting to address unfounded "myths" raised in opposition by "supporters of intellectual property theft." (attached)
As the bill goes to the House floor, I hope that Rep. Ehlers will be perceptive enough to see beyond this combination of straw men and ad hominem. Whereas the document characterizes the opposition argument as, "H.R. 4137 would take financial aid away from colleges and students who engage in illegal file sharing," this is a misdirection. Rather, it has been clearly argued that the bill would take financial aid away from students at colleges that do not follow the vague mandate to plan alternatives and technological deterrents to illegal file sharing -- which this bill unquestionably does. The document also states that the bill would not "force" colleges to use alternative file-sharing programs, which is technically true but elides the "plan to explore" language that clearly requires the first step in such a process. Finally, the document claims that the bill "does not ask colleges to enforce copyright laws." This is absolutely true. We would not want colleges to be tasked with enforcing the law, and we would certainly not want to task them with enforcing unproven "technology-based deterrents" that are a poor approximation of copyright law and generate considerable collateral damage.
The provisions attempt a "have your cake and eat it too" approach in which the bill does not technically force copyright enforcement on universities, but still mandates action that has that effect. Universities already have ample incentive to deter students from such illegal activity, and (as the MIT letter I forwarded earlier shows) they are exploring the nascent technical approaches to this problem. A grant program to further fund these efforts might be helpful. A vague, unfunded mandate to take a combined technology/alternatives approach is likely to generate only non-productive costs and to have a chilling effect on aspects of academic study.
September-October 2008 Update:
The Department of Education holds a series of public meetings to determine what specific rules will be used, with input from representatives from higher ed giving testimony. EDUCAUSE explains:
Although the provisions are now law, it is still necessary for the Department of Education to hold a “negotiated rule making” process in order to define exactly how the law will be enforced on colleges and universities. The final rules that spring from that process may not take effect until July 2010. It is essential, however, that institutions make a “good faith effort” to comply with the law in the meantime.
During the negotiated rule making process, colleges and universities will have an excellent opportunity to present their views on how this law should be applied. This is a very serious issue - one that, if done incorrectly, could result in significant costs in money and time, as well as the disruption of networks. Consequently, it is critical that the Department of Education hear from those of us who are directly affected, so they are aware of how important the P2P issue is for our institutions.
The general message in testimony from universities is "make the rules as flexible as possible, allowing each university to decide its own approach."
On December 31, 2008, the Department of Education publishes its intent to develop five negotiated rulemaking committees. The copyright provisions fall under "Team V."