August 4, 2008 | By corynne mcsherry

Congress Bows to Big Content, Scapegoats Higher Ed

Last week, after months of intensive wrangling, the House and the Senate finally agreed on a final version of the Higher Education Act (HEA). Buried in this massive bill, which touches on virtually every aspect of education, is a little provision requiring campuses to develop “plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents.” Those deterrents include bandwidth shaping and traffic monitoring, but also use of filtering technologies such as Audible Magic. “To the extent practicable,” colleges and universities must also offer legal alternatives for file-sharing, such as music services like Ruckus.

There are at least three major problems with this. First, at least some of the “technological deterrents” colleges are being pushed to adopt simply won’t work. The Common Solutions Group, a consortium of 25 educational institutions, looked at the leading “infringement suppression” technologies and concluded that they were expensive, not very effective, and could suppress legitimate as well as infringing traffic. The Association for Computing Machinery found that the mandatory use of these technological deterrents would “add to the costs of education and university research, introduce new security and privacy issues, degrade existing rights under copyright, and have little or no lasting impact on infringement of copyrighted works.”

Second, the students have little interest in the “alternatives” now on offer, such as Ruckus and cDigix. It’s not hard to see why. As Steve Worona of Educause notes, “Even when offered for free, students stayed away in droves. The selection of songs was too small or the music couldn't be downloaded to iPods or the content couldn't be moved from device to device.” Now, rather than ditching these unpopular services, colleges and universities will have to promote them.

Third, this legislation is based on two fundamentally flawed premises: that college networks are the central nodes of illegal file-sharing in the U.S., and that the managers of these networks aren’t doing much to stop it. In reality, there’s no evidence that students are any more or less guilty of illegal file-sharing that the general population. In fact, last year the MPAA finally admitted that its oft-repeated claim that students were responsible for 44% of MPAA members’ lost revenue due to file-sharing was just wrong. And colleges and universities already do much more than any commercial ISP to educate their customers (students) about the risks of illegal file-sharing, and to punish those who engage in it.

But maybe this lemon of a bill could be turned into lemonade. If Congress wants colleges and universities to cut down on illegal file-sharing, perhaps those educational institutions should propose a real alternative — voluntary collective licensing.

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