House Passes Higher Education Bill With a Controversial P2P ProvisionFebruary 11, 2008 - by Donny Shaw
Last Thursday, the House overwhelmingly approved the College Opportunity and Affordability Act, a bill that gathers together dozens of proposals designed to make colleges more affordable and accessible. But tucked away amongst its 747 pages of mostly-non-controversial provisions is a section entitled “Campus-Based Digital Theft Prevention” that has drawn a red flag from all sorts of tech-savy public interest groups.
Here’s the meat of the controversial section:
>(a) In General- Each eligible institution participating in any program under this title shall to the extent practicable—
> ’(1) make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and
> ’(2) develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.
Subtitle 2 is the part that has been found most offensive. Richard Esguerra of the Electronic Frontier Foundation, one of the leading groups in the push against this section of the bill, put the legalese into plain language: “‘alternatives to illegal downloading’ means industry-sanctioned download services; and existing ‘technology-based deterrents’ means network filters and other tools.”
Students for Free Culture has written a great open letter explaining why they, as current university students, are concerned that the requirements in this section are “technically impracticable, unreasonably costly, and, most important, beyond the educational missions of institutions of higher education”:
>Among the data that is copied across a university network, one will find works from the public domain, large experimental datasets, works whose licenses permit copying, and creative works protected by copyright used in research or the classroom. Because computer programs have not been able to match the nuanced manner in which a judge must apply the fair use balancing test to each alleged instance of copyright infringement, technical deterrents to infringement on academic networks unfairly burden lawful users by compromising their privacy and greatly slowing network traffic.
>Some universities have contracted with private digital media distribution services to encourage lawful downloading of works protected by copyright. Many have found these services inadequate for the needs of an academic institution. In particular, a service that requires students to commit to a particular computing platform unfairly impacts competition in the marketplace and hinders students’ ability to freely use and experiment with various technological platforms and tools. If those services also implement Digital Rights Management (DRM) to control how customers use the digital media they purchase, it necessarily constrains the non-commercial and educational uses of those creative works. Contracts with commercial media distribution services therefore limit the ability of colleges and universities to effectively serve their students.
Much of the bill closely resembles the Senate’s Higher Education Amendments Act of 2007, which was unanimously passed in July. That bill, however, would approach “digital theft prevention” on a case by case basis, putting the punishment specifically on the students engaged in illegal filesharing. The Senate bill states that “unauthorized distribution of copyrighted material on the institution’s information technology systems, including engaging in unauthorized peer-to-peer file sharing, may subject the students to civil and criminal penalties.”
Before being sent to President Bush to be signed into law, the two bills will be brought together and reconciled by a joint conference committee made up of members from both the House and Senate. The conference committee will decide what version of the filesharing language (if any) will become law.
Pictured above is George Miller (D-CA), the House bill’s sponsor.