January 14, 2008 | By Richard Esguerra

Troubling "Digital Theft Prevention" Requirements Remain in Higher Education Bill

Last November, we reported on H.R. 4137, the College Opportunity and Affordability Act of 2007, which includes misguided anti-piracy requirements for universities. For the most part, the massive, nearly 800-page bill refreshes existing legislation about federal financial aid. But the bill also includes a section with a title that sounds as if it were dreamt up by an entertainment industry lobbyist: "Campus-based Digital Theft Prevention." Specifically, the bill says:

Each eligible institution participating in any program under this title shall to the extent practicable—


(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.

To those unfamiliar with this particular sort of DC double-speak, "alternatives to illegal downloading" means industry-sanctioned download services; and existing "technology-based deterrents" means network filters and other tools.

These congressional requirements will turn out to be expensive dead-ends -- the industry-sanctioned online music services are laden with DRM, and network detection/filtering programs present privacy risks and are inevitably rendered obsolete by technological countermeasures.

Advocates of the bill stress that the language stops short of demanding implementation -- that it only requires universities to "plan" -- but this argument misses the point entirely. The passage of this bill will unambiguously lead universities down the wrong path. For the sake of artists, administrators, students, and consumers better approaches exist.

The bill also would hang an unspoken threat over the heads of university administrators. In response to concerns that potential penalties for universities could include a loss of federal student aid funding, the MPAA's top lawyer in Washington said that federal funds should be at risk when copyright infringement happens on campus networks. Moreover, earlier versions of "Campus-based Digital Theft Prevention" proposals nakedly sought to make schools that received numerous copyright infringement notices subject to review by the US Secretary of Education.

In October 2007, the MPAA even tried to supplement its efforts in Congress by giving away custom-built network monitoring software to universities it had flagged for having the most file-sharing traffic. The software, which they called "University Toolkit," was exposed by researchers to have egregious security and privacy flaws. And, in an ironic twist, the University Toolkit was removed from the MPAA website following allegations of copyright infringement -- the MPAA had failed to comply with copyright licensing terms that required the source code for the toolkit software to be freely available.

Recent reports suggest that February may be the earliest that the House will address the bill. There is time yet to contact your representative in Congress to educate them about these out-of-place requirements, and to ask that they support any effort to remove the offending mandate from the bill. Visit our Action Center to email your representative today.

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