Sidebar
Big
Brother Invades the Campus and Workplace:
Infotainment and the Copyright Cops
by Carol Ebbinghouse, Western State University College
of Law
What topped PC Magazine 's list of The Great Debates of 2003?1 "Hollywood
vs. Silicon Valley." The Creative Content Community stands vigilant in its battle
against services and technologies that would liberate music, movies, games, media,
etc., to all takers. On the legislative front, a bill in Congress (HR 5211) would
give content producers the ability to interfere with peer-to-peer (P2P) networks
if used for downloading their works. Specifically the bill would "enable content
owners' self-help measures to combat peer-to-peer piracy."2 In
the article discussing the bill, "the Association for Computing Machinery (ACM)
wrote that this measure would encourage unethical behavior.... 'We are concerned
that HR 5211 would legitimize a variety of questionable acts that violate professional
and ethical standards,' wrote Barbara Simons and Eugene Spafford. ...Among their
concerns: (1) Permitting self-help on P2P networks could mean 'all computers
connected to the Internet.' (2) Self-help efforts 'would create new volumes of
network traffic, resulting in Internet service disruptions and degradation of
service for innocent Internet users, many of whom may not be using P2P networks.'
(3) The bill 'underestimates the technical challenge' of identifying copyrighted
works online. (4) Self-help would involve defeating firewalls and other security
measures, that ACM said violated both the Digital Millennium Copyright Act (DMCA)
and the USA Patriot Act. (5) The bill ignores the fact that P2P is used for a
variety of uses, including R&D via distributed computing."
While I agree with PC Magazine, that the
battle is on, the author implied that the battlefield
lies in the Congress. On the contrary, it is everywhere — at
least everywhere the entertainment industry can think
of. Specifically, the leading entertainment organizations
have now begun targeting colleges and universities,
as well as corporate America.
The RIAA Letters
The Recording Industry Association of America (RIAA),
the Motion Picture Association of America (MPAA),
the National Music Publisher's Association (NMPA),
and the Songwriters Guild of America (SGA) have joined
forces. On October 3, 2002, letters from these organizations
went out to Fortune 1000 corporations and 2,300 letters
to college and university presidents. Language in
the letters asks that the recipients "...forward
copies of this letter to your General Counsel/Chief
Legal Officer, as well as your Director of Information
Technology/Information Systems, your Chief Financial
Officer, and your Dean of Student Affairs" on October
3, 20023.
The letters to corporate America4 asked
the companies to prevent their employees from taking
copyrighted material off the Web while at work. The
creative content organizations pointed out that it "appears
that many corporate network users are taking advantage
of fast Internet connections at work by publicly
uploading and downloading infringing files on P2P
services and also distributing and storing such files
on corporate intranets. ... The use of your digital
network to pirate music, movies and other copyrighted
works both interferes with the business purposes
your network was built to serve and subjects your
employees and your company to significant legal liability
under the federal copyright law." Now that's subtle.
The creative content organizations' letter encourages
companies to implement "employee policies and technical
measures to prevent copyright infringements on ...
corporate networks."
The RIAA has already "obtained a $1 million settlement
in an action it brought against Integrated Information
Systems, Inc. of Tempe, Arizona, in order to make
an example of a corporate infringer. The complaint
alleged that the defendant had provided a computer
on its corporate network for infringing peer-to-peer
file-sharing."5 New products
are being rushed to market to help corporations detect
MP3 files on corporate networks6.
Look over your shoulder.
So RIAA is going after corporations. But why write
to college and university presidents? Because "[w]e
are writing to you as representatives of America's
creative community on an urgent matter regarding
copyright infringement by some university students.
We are concerned that an increasing and significant
number of students are using university networks
to engage in online piracy of copyrighted creative
works."7
In fact, RIAA has several problems with student "piracy
of copyrighted creative works" on campuses across
the nation. The primary reason, according to the
letter, is the fact that "students and other users
of your school's network who upload and download
infringing copyrighted works without permission of
the owners are violating federal copyright law." The
RIAA apparently also worries that piracy "can take
up a significant percentage of a university's costly
bandwidth. ...When students run P2P applications
and offer files from upload, much of the bandwidth
drain is likely to be users outside of the university
downloading files from students. ... The non-university
users downloading these illegal files take bandwidth
away from students and members of the university
community intending to use the network for educational
purposes. Many universities use bandwidth management
tools to reduce bandwidth demands from illegal and
improper use of the university networks. These tools
can be used to take such steps as monitoring for
inappropriate use, metering the bandwidth available
to each student, setting caps on upload speeds, and
blocking access to infringing P2P services. ... There
are a number of companies that offer these bandwidth
management tools, and we have attached a list of
some of these companies for your information."
How thoughtful.
Aside from copyright infringement and wasted bandwidth,
the RIAA, et al., also fear that "P2P also poses
serious network security and student privacy risks.
... P2P software is also susceptible to worms and
viruses." Interesting that the RIAA should care about
P2P software threats to student privacy, but not
about privacy issues raised by the proposed "monitoring
for inappropriate use" of network resources.
So what does the RIAA really want college and university
presidents to do? "We ask for your leadership in
addressing student piracy on your network. Specifically,
we urge you to adopt and implement policies that
do the following:
• Inform students of their moral and
legal responsibilities to respect the rights of
copyright owners.
• Specify what practices are, and are
not, acceptable on your school's network.
• Monitor compliance.
• Impose effective remedies against
violators."
To help, the RIAA has "attached a list of Internet
links to selected university Codes of Conduct to
demonstrate some of the positive steps already being
taken in the university community to address the
issues implicated by misuse of university networks." The
university acceptable use policies selected by the
RIAA included Drake University, the University of
North Carolina at Chapel Hill, and the University
of Michigan. The RIAA also listed companies that
offer bandwidth management resources.
University Reactions
What followed the initial RIAA volley? On October
8, less than a week later, the heads of the American
Council on Education (ACE), Association of American
Universities (AAU), National Association of Independent
Colleges and Universities (NAICU), the American Association
of Community Colleges (AACC), the American Association
of State Colleges and Universities (AASCU), and the
National Association of State Universities and Land-Grant
Colleges wrote8:
to follow up a letter you recently received from
several associations representing the music and motion
picture industries. These groups are deeply concerned
about copyright infringement that is occurring through
the use of peer-to-peer file sharing software on
many computer networks, including those on college
and university campuses. ... We share their concern
about the use of campus computer networks for inappropriate
file sharing and are writing to encourage you to
give serious attention to this issue. ... We urge
you to discuss this issue with all appropriate campus
officials, including provosts, general counsels,
chief information officers, business officers, librarians,
and student affairs officers. These discussions may
well result in a reassessment of your institutional
computer usage policies and bandwidth management
practices. In addition, given our responsibility
as educators to help students make ethical and lawful
choices, we encourage you to make efforts to educate
students, faculty and staff about appropriate and
inappropriate uses of copywritten materials.
The higher-education associations noted, "Some
institutions of higher education have already addressed
this issue and the recording and movie industries'
letter provided several examples. While these illustrations
merit your consideration, we do not believe that
there is a single solution that will work equally
well for all schools. This is a challenge that must
be addressed on a campus-by-campus basis."
Attacking in a different direction, the Association
of American Universities wrote on behalf of the American
Council on Education and the National Association
of State Universities and Land-Grant Colleges, to
ask the U.S. Copyright Office to allow scholars to
avoid the anti-circumvention provisions of the Digital
Millennium Copyright Act and permit fair use of copyrighted
material for research and teaching9.
The Circle Widens
On November 6, 2002, the Electronic Privacy Information
Center joined the fray in a letter10 to
college and university presidents:
We are writing in regard to a series of letters
you recently received on issues of copyright infringement
and peer-to-peer (P2P) file trading networks. The
Electronic Privacy Information Center (EPIC) is a
not-for-profit research center that focuses on the
right to privacy and emerging civil liberties issues.
We believe these issues require a circumspect analysis
of the impact of network monitoring on privacy and
academic freedom. While network monitoring is appropriate
for certain purposes such as security and bandwidth
management, the surveillance of individuals' Internet
communications implicates important rights, and raises
questions about the appropriate role of higher-education
institutions in policing private behavior. We recommend
that your institution carefully consider the issues
recently detailed in a report by the National Science
Foundation Logging and Monitoring Project (LAMP).
The LAMP report11 examines
the intersection of network logging, privacy issues,
and security risks. It also recognizes the unique
environment of higher-education institutions and
recommends caution when engaging in monitoring. While
the Recording Industry Association of America (RIAA)
has legitimate interests in protecting against infringement,
it is worth noting that copyright law sets limits
on the exclusive rights of content owners, making
some uses of protected material legal.
EPIC acknowledges that "the Recording Industry
Association of America (RIAA) has legitimate interests
in protecting against infringement, ... copyright
law sets limits on the exclusive rights of content
owners, making some uses of the protected material
legal. ... Now the RIAA wishes to involve colleges
and universities in the process of policing the communicative
activities of students, staff, and faculty in a way
that is significantly outside the institutional missions.
... [W]e urge caution in adopting network monitoring
and other similar methods to address concerns about
infringement."
EPIC is concerned about the "chilling effect" that
monitoring can have on the marketplace of ideas. "Such
a level of monitoring is not only impracticable;
it is incompatible with intellectual freedom." In
addition, the group notes that monitoring "of individuals'
network usage habits generates records subject to
a system of protections under the Federal Educational
Rights and Privacy Act (FERPA)." And it worries that "monitoring
appliances can be systems of general surveillance.
... Once installed on an institution's network, they
could be used for copyright control today, and the
control of ideas tomorrow. ... Institutions of higher
education should not practice content monitoring,
an approach that the controlled environments of corporate
workplaces and kindergartens have adopted." EPIC
also debunks the RIAA concerns about "purported privacy
and security risks of P2P. ... The copyright industry
alleges that P2P programs jeopardize network security
and privacy. While all network-enabled applications
raise security concerns, P2P systems are not uniquely
vulnerable and do not warrant special treatment on
these grounds."
Finally, EPIC notes:
[that under] current law, educational institutions
are required to take down infringing content hosted
on a university Web server. These provisions provide
an adequate remedy to address online infringement.
But this new proposal would shift the burden to colleges
and universities to devote scarce resources to monitoring
online communications and to identifying and "prosecuting" individuals
suspected of using P2P networks to commit copyright
violations. This is neither a reasonable nor an appropriate
burden to place on institutions of higher education.
... If a copyright owner suspects such infringement,
it can initiate a lawsuit against the suspected wrongdoer.
We recommend that institutions take a careful approach
to addressing the legitimate concerns of the copyright
industry. We also recommend that institutions not
adopt privacy-invasive technologies or policies that
impinge upon academic freedom and privacy in order
to address those concerns. Network monitoring for
bandwidth management is appropriate, but monitoring
of individuals' activities does not comport with
higher education values.
Library Organizations Begin to Weigh In
On December 16, I received a "Dear Library Director" e-mail
from the President of the Association of College
and Research Libraries (ACRL), Helen Spalding:
You may be aware of some correspondence regarding
copyright law that was recently sent to university
and college presidents by the leaders of several
higher-education associations. ACRL encourages you
to engage your president and other academic officers
in discussion about this matter and offers support
and assistance to allow you to provide them with
accurate information.
ACRL leaders agree that peer-to-peer networking
file sharing is a campus problem that, along with
facilitating the distribution of unauthorized copies
of copyrighted work, uses valuable bandwidth and
affects overall campus network operations. We disagree,
however, with the implication that all file-sharing
activities are infringements of copyright that constitute
piracy. ... Moreover, universities and libraries
are using peer-to-peer networks for research, teaching,
and document transfer that are all within the bounds
of the copyright law.
So what is a librarian to do according to ACRL? "Now
more than ever, it is important for librarians to
help advise college and university administrators
on copyright policy. Librarians understand the importance
of a balanced approach to copyright law and are often
the copyright focal points on campus. We must be
at the table when university policies are established
to respond to content industry concerns. While piracy
is wrong and infringers should be held accountable,
we must ensure that decisions made today do not adversely
affect education and research for years to come." The
letter goes on to name contacts and note that ACRL
will "make available information or links on its
Web site to help librarians with these important
issues."
What Is There to Worry About?
In the December 2, 2002, Business Week Online12 Daily
Briefing, Jane Black noted, "On Nov. 21, the U.S.
Naval Academy seized almost 100 computers from students
suspected of downloading unauthorized copies of songs
from the Internet. ... The confiscation comes on
the heels of a letter the Recording Industry of America
(RIAA) sent to the Naval Academy and ... to nearly
2,300 colleges in October."
Is the Naval Academy the first of many to confiscate
student computers and/or threaten expulsion? Well,
it is the first. "Most universities have neither
the right, nor the inclination, to seize student
computers. Fears are rampant that the ubiquitous
monitoring required to eliminate file sharing would
chill free speech and squelch the creativity that's
an integral part of university life. The result:
Though many colleges would love to rid their networks
of the plague of file-sharing, most take a rather
benign approach to the problem." Several examples
of university action at other schools are provided.
When students have a suspicious file stored on the
university's network, the university may remove it,
unless the student can establish that coursework
requires the file. Other campuses may revoke bandwidth
privileges if infringement is a problem with a particular
student.
New orientation programs focus on copyright infringement.
According to a report in the November 26, 2002, Washington
Internet Daily on the Naval Academy, "Midshipmen
are given PCs when joining the Academy and pay them
off over a 4-year stint through deductions from their
monthly paychecks." Articles discuss the actions
that network managers at Stanford, Yale, Penn State,
and other universities are taking.
This is not the first time that content owners
have sent letters to universities. According to the
October 23, 2002, University Wire from the University
of Wisconsin, "Robert Dreschsel, a professor of journalism
and mass communication at UW, said music labels once
threatened UW to block access to Napster. 'I can
remember when Napster was really becoming popular;
the lawyers representing the music industry sent
some threatening letters to the university trying
to get the university to block the use of Napster,
and the university didn't do that,' Dreschsel said.
While UW did not take action against students using
peer-to-peer networks, a number of universities did.
In 1999, 71 students at Carnegie Mellon University
lost in-room Internet access for the rest of the
semester after they were found in a surprise inspection
to be posting audio files containing copyrighted
music. CMU said this action was in response to the
music industry's effort to discourage music piracy."
National Public Radio has addressed the issue.
On November 29, 2002, the Morning Edition discussed
the Naval Academy's seizure of student computers.
Reporter Neda Ulaby interviewed several representatives
of the entertainment organizations, and "Siva Vaidhyanathan,
professor at New York University ... says members
of the Creative Content Community are reluctant to
go after individual file sharers, because those people
are still potential customers. So, he says, the industry
is leaning on the places that provide Internet service
to those individuals. ... By going after the universities,
by going after the Internet service providers, they're
one step away from going after us in our homes. And
I'm afraid that that's really where the battle's
going to have to be fought." According to Ulaby, "Vaidhyanathan
believes that to really make a dent in peer-to-peer
file sharing, the industry will have to make an example
out of individual consumers. And that, Vaidhyanathan
says, is what the Naval Academy action was all about."
Déjà Vu All Over Again
In July 1997, I wrote about acceptable use policies13 in Searcher in
response to an incident we called "blue movie night
in the computer lab." In that article I stated, "If
the policies haven't worked, the university should
know, so they can launch an educational campaign
to explain 'netiquette,' electronic mail caveats,
acceptable and unacceptable use rules, and the consequences
of violating them. Note that I do not advocate software
that looks over each individual's shoulder, but something
that can inform the organization of the total use,
say the top 200 Web sites among its users. One business
installed this type of software to discover that
only 66 percent of its Internet use was business-related." And
I concluded, "[e]ncouraging people to use the Internet
is easy. Reminding them to use the service responsibly
is important, too. ... An acceptable use policy is
a first step. When coupled with an educational program
on 'netiquette' in e-mail, listservs, and chat rooms,
a policy defining organizational expectations on
Internet use and conduct will eliminate most problems
before they start. Make building the policy a team
effort among MIS, the Human Resources Department,
a representative group of end users, and, of course,
the library. The library should be seen as a proactive
unit of the organization, and, in such a leadership
position, should still protect user rights. It should
assure that the Library Bill of Rights and other
professional, free speech, and Internet priorities
are taken into account in the development of a policy."
Alternative Approaches for Entertainment Organizations
According to one student, "I think the music companies
haven't gone far enough to provide a legal alternative
to file-sharing networks — one that is inexpensive
and easy to use, has all the music you want, and
lets you keep it."
In a December 2002 article entitled "Piracy Is
Progressive Taxation, and Other Thoughts on the Evolution
of Online Distribution" [http://www.openp2p.com/lpt/a/3015],
Tim O'Reilly commented on the lessons of his experience
as an author and publisher:
Lesson 6: "Free" is eventually replaced by a higher-quality
paid service. A question for my readers: How many
of you still get your e-mail via peer-to-peer UUCP
dialups or the old "free" Internet, and how many
of you pay $19.95 a month or more to an ISP? How
many of you watch "free" television over the airwaves,
and how many of you pay $20-$60 a month for cable
or satellite television? (Not to mention continue
to rent movies on videotape and DVD, and purchasing
physical copies of your favorites.)
Services like Kazaa flourish in the absence of
competitive alternatives. I confidently predict that
once the music industry provides a service that provides
access to all the same songs, freedom from onerous
copy-restriction, more accurate metadata and other
added value, there will be hundreds of millions of
paying subscribers. That is, unless they wait too
long, in which case, Kazaa itself will start to offer
(and charge for) these advantages. (Or would, in
the absence of legal challenges.) Much as AOL, MSN,
Yahoo!, Cnet, and many others have collectively built
a multi-billion dollar media business on the "free" Web, "publishers" will
evolve on file sharing networks.
Why would you pay for a song that you could get
for free? For the same reason that you will buy a
book that you could borrow from the public library
or buy a DVD of a movie that you could watch on television
or rent for the weekend. Convenience, ease-of-use,
selection, ability to find what you want, and for
enthusiasts, the sheer pleasure of owning something
you treasure.
The current experience of online file-sharing services
is mediocre at best. Students and others with time
on their hands may find them adequate. But they leave
much to be desired, with redundant copies of uneven
quality, intermittent availability of some works,
incorrect identification of artist or song, and many
other quality problems. ...In looking at online content
subscription services, analogies with television
are instructive. Free, advertiser-supported television
has largely been supplanted — or should I say
supplemented (because the advertising remains) — by
paid subscriptions to cable TV. What's more, revenue
from "basic cable" has been supplemented by various
aggregated premium channels. HBO, one of those channels,
is now television's most profitable network. Meanwhile,
over on the Internet, people pay their ISP $19.95/month
for the equivalent of "basic cable," and an ideal
opportunity for a premium channel, a music download
service, has gone begging for lack of vision on the
part of existing music publishers.
Another lesson from television is that people prefer
subscriptions to pay-per-view, except for very special
events. What's more, they prefer subscriptions to
larger collections of content, rather than single
channels. So, people subscribe to "the movie package," "the
sports package," and so on. The recording industry's "per
song" trial balloons may work, but I predict that
in the long term, an "all-you-can-eat" monthly subscription
service (perhaps segmented by musical genre) will
prevail in the marketplace.
Are letter-writing, veiled threat-making, and court
action the best use of the entertainment industry's
time? Other fee services have found ways to survive
with competition from free services — and here,
the industry has the option of creating the easy-to-use
fee service itself. What market share, what opportunity — lost
if it doesn't begin to re-direct its resources.
Summary14
I hope the RIAA letters and their progeny re-spark
the debate on individual freedom, personal responsibility,
privacy, security, and acceptable use. The readers
of Searcher magazine — information professionals
in libraries, corporations, law firms, schools and
universities — should initiate discussions in
our own environments. Hold a brown-bag lunch event — and
see how many show up. Raise the issue at a faculty
meeting or with management. If we fail to lead, we
may never be asked to participate — and there
will be no one to represent the library, information
user or patron, and no one who conscientiously follows
the overarching issues in the professional and information
industry press.
Footnotes
1 Michael J.
Miller, "The Great Debates of 2003," PC Magazine,
vol. 22, January 2003, p. 7.
2 Washington
Internet Daily, October 1, 2002.
3 See the text
of the letter at http://www.riaa.com/pdf/Univeristyletter.pdf.
4 The text of
the letters is available at http://www.riaa.com/pdf/Corporate%20Outreach.pdf.
See also Brooks Boliek, "War on Piracy Goes Corporate;
Hollywood Asks Companies to End Workplace Downloads," The
Hollywood Reporter, October 28, 2002.
5 Jim Halpert
and Ron Plesser, "Limiting Risk of Liability for
Peer-to-Peer Infringement," E-Commerce Law Report,
vol. 5, October 2002, p. 2. The authors describe
grounds for corporate liability, specific legal
cases, and specific steps to take to prevent legal
problems.
6 For example,
see "Apreo Announces First QuickStart Detection
Program for MP3s and Desktop, Online File-Sharing
Software," Business Wire, November 13, 2000, which
leads with "Lets Fortune 1000 Immediately Comply
with RIAA Anti-Piracy Campaign and Minimize Legal
Liability."
7 RIAA letter
of October 3, 2002, located at http://www.riaa.com/pdf/Universityletter.pdf.
8 See the October
8, 2002, letter at http://www.riaa.com/pdf/Copyrightletter.pdf.
9 Andrea L. Foster, "College
Groups Challenge Copyright Office on Exceptions
to Digital-Copyright Law," Chronicle of Higher
Education (December 20, 2002) and http://chronicle.com/free/2002/12/2002122001t.htm.
10 The letter
can be found at http://www.epic.org/privacy/student/p2pletter.html with
links to other documents on the issue from CAUSE,
EDUCOM, and the National Science Foundation.
11 Virginia
E. Rezmierski and Nathaniel St. Clair, II, "Identifying
Where Technology Logging and Monitoring for Increased
Security Ends and Violations of Personal Privacy
and Student Records Begin," Final Report of the
National Science Foundation Logging and Monitoring
Project (2001), at http://www.aacrao.org/publications/catalog/NSF-LAMP.pdf.
12 http://www.businessweek.com/technology/
content/nov2002/tc200211272314.htm.
13 Carol Ebbinghouse, "Taming
the Wicked, Wicked Net: Acceptable Use and the
Internet; How to Prevent Improper Usage of Online
Access at Libraries, Colleges, Companies," Searcher:
The Magazine for Database Professionals, vol.
7, July 1997, pp. 12+.
14 Michael J.
Miller, "The Great Debates of 2003," PC Magazine,
vol. 22, January 2003, p. 7+.
Carol Ebbinghouse's e-mail
address is carole@wsulaw.edu.
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