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A Friendly Reminder

A Friendly Reminder
November 7, 2007

Could students possibly be making themselves vulnerable to lawsuits from the recording industry -- without knowing it?

The University of Michigan thinks they might. And just to be sure, it rolled out a service last week that automatically informs students living in residence halls if they're uploading files via peer-to-peer technology. The service, called BAYU (for Be Aware You're Uploading), is being described by officials as an educational tool that keeps students aware of their online activity.

Experts believe it's primarily through uploading -- serving music or movie files to other people, rather than just downloading content -- that users accused of sharing copyrighted material are identified as potential targets of lawsuits. Relying on "traffic shaping" technology that Internet service providers routinely employ to regulate the volume of data on their networks, Michigan's in-house system flags any upload activity that uses peer-to-peer protocols -- whether legal or not -- and traces the packets to the associated user account.

The approach highlights some of the dilemmas facing colleges and universities as they comply with (or, in some cases, resist) the recording industry's battle to combat students who share copyrighted music, TV shows and movies. Universities are considered Internet service providers in cases of copyright infringement, leaving them in most cases not liable for the actions of students who use their networks for potentially illegal purposes. But that sometimes places them in a position that critics liken to network cops for hire, but others characterize as legitimate enforcers of the law.

Michigan's homegrown approach to the problem is unusual so far in higher education. "I think it shows that campuses are taking this problem seriously and are looking for creative ways to help students understand what is and isn’t legal," said Steven L. Worona, director of policy and networking programs for Educause, a nonprofit organization that supports technology use in higher education.

As Jack Bernard, an assistant general counsel at Michigan, put it: "BAYU is designed to help people understand what they’re doing."

To that end, the service sends an e-mail to students it has identified as file sharers. They might be doing it in a completely legal way, Bernard stressed, such as sharing research material, works in the public domain or data for "interactive entertainment," but BAYU encourages them to "be sure that they’re sharing only those files that they want to share."

Otherwise, uploading potentially copyrighted files amounts to a “bright neon sign on the Internet with an arrow pointing at your hard drive saying, 'Come in here, free stuff,' ” Bernard said. “So when you do that anyone who wishes to can go in there," including the Recording Industry Association of America.

Most file-sharing clients -- such as Kazaa and Grokster -- have an option that allows users not to share any of their computer's files even as they download from others. But that isn't necessarily the default setting, Bernard said, and some programs have a habit of resetting users' options periodically, such as after an upgrade or patch is installed.

Of the Michigan students who have received pre-litigation letters from the RIAA, he added, "overwhelmingly they just did not have any idea they were uploading."

That's an argument that would likely hold little weight in court. (It also doesn't convince Kurt Hunt, a third-year law student and blog editor for the Michigan Telecommunications and Technology Law Review , who believes that most students are savvy enough to know what they're doing.)

The recording industry routinely asks colleges to forward pre-litigation letters, which contain offers of discounted out-of-court settlements, to the students who match given IP addresses identified by the RIAA's digital sleuthing as distributors of copyrighted content. The University of Michigan, like many other institutions, complies with the requests -- a policy that has generated some heat from students and critics of the recording industry's tactics against illegal file sharing.

The university argues that it is helping students by informing them that they could become the subject of a future lawsuit. In an op-ed in The Michigan Daily last week, Bernard wrote, "We chose the path that empowers our students to be a part of the process, to prepare for a lawsuit and to make their own decisions. This probably helps the RIAA at some level, but we believe that despite this ancillary condition, the primary obligation is to our University community."

According to Bernard, the university currently notifies students after the first step in the recording industry's enforcement mechanism, which is an e-mailed "preservation notice" (under the auspices of the Digital Millennium Copyright Act) requesting IP address data from network logs at a particular date or time. Once the pre-litigation letters are sent, the university forwards those on to students as well.

Although Michigan has a series of punishments in place for students caught violating digital copyright laws, being notified by BAYU isn't one of them. It doesn't specifically target illegal file sharing or demand specific actions, although it offers links to information about peer-to-peer networking. Among the options suggested are disabling any uploading capabilities in file-sharing clients (with instructions), removing all peer-to-peer software and opting out of future BAYU e-mails entirely. (Bernard said only 18 students, out of some 11,000 living in the dorms, have done so since last Tuesday.)

“We think that our educational efforts are actively discouraging people from engaging in unlawful activity," Bernard said.

The deterrent factor, suggested Hunt, might be a primary motivation behind the service. "In that respect, the cynical way of thinking about it would be that if it reduces unauthorized uploading from the residence halls," then there will be less attention from the RIAA and less "administrative headaches," he said.

"A less cynical way of putting it is that it’s kind of an ounce of prevention kind of situation," he said, tackling the problem earlier rather than later in the litigation stage.

The system has been in place only for a week, so it remains to be seen whether other colleges adopt similar plans. Hunt suggested that if the idea does catch on, it could significantly alter the file-sharing landscape by discouraging many providers of free copyrighted material from sharing the works they already have on their computers. That would theoretically block a core component of what makes the decentralized peer-to-peer networks a success among their users.

"It seems like that could actually have some serious nationwide impact on peer to peer in general," he said.

 

 

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