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  • Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).

Where There's Smoke ...
September 29, 2011 - 7:45am

In today's IHE article on the Advisory Committee on Student Financial Aid Committee's survey of higher education regarding regulation, the conclusion suggests that higher education may perceive the burden of regulation to be greater than it actually is. Maybe so, I am not an expert on the whole thing. But I do know something about the last decade's file sharing debacle. My experience based on that example makes me skeptical.

The Higher Education Opportunity Act's peer to peer file sharing provisions are discriminatory toward higher education.

By virtue of this Act, which ties compliance to financial aid, higher education Internet Service Providers (ISPs) are the ONLY ISPs required to provide notice to users of the law and statutory damages AND implement a "technological solution" (my emphasis) AND assess effectiveness on an annual basis.

What is the alleged rational for this added burden on higher education? Frankly, I don't know, because the numbers don't add up. After years of wrangling about the math, the percentage of alleged infringement on higher education networks was minute compared to the alleged total infringement on the Internet overall. That finding makes sense to most people, even after separating out the fact that young people, without a lot of funds, on high speed networks, deeply interested in contemporary culture might infringe copyright ... because those features are true for all young people, and plenty of older ones too, across the board of connected global society.

So why pick on higher education? Because we were an easy target. The vast majority of people in higher education administration and faculty have been goody two shoes for most of their life: valedictorians, teacher's pets, phi beta kappa, etc., towing the line, and often very much to their credit, believing in those higher ideas of citizenship and public good. If criticized, as higher education was mercilessly by content owners for a time (until they got their way with this legislation), we, by and large, did not call a bully a bully, we sought ways to compromise. And even if we had gone to the principal for support, it is not clear in this allegory who that was and what we could do. Was it Congress? Forget about it! Congress has caved to virtually every whim and desire, from the Copyright Act of 1976 to Digital Millennium Copyright Act to the Copyright Extension Acts of 1998 to the Higher Education Act of 2008, of the content industry for almost a century. Not only was higher education of the temperament to try to help rather than fight, it didn't have much of a choice. No one in government -- Democrat or Republican -- seemed to have the understanding of this issue or the courage to stand up for us more forcefully.

If this example is an exception to the rule that we in higher education are just making it all up, then let the rule stand. But having been a witness to how this regulation that has cost money-strapped higher education millions of additional dollars, to an end that remains unclear except to demonstrate the content industry's political might, I remain skeptical. Something tells me that in this highly politicized culture in which we live, this example might not be the only one that pits politics against higher education via the regulatory state (of which I am, on balance, generally a supporter, by the way). In this case, where there's smoke, there's fire.


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