In Congress's Crosshairs

March 9, 2007

A House of Representatives subcommittee lambasted college leaders Thursday for their perceived failure in stemming the illegal downloading of music and movies by students. Committee members, responding to complaints by the entertainment industry that campuses have been slow to restrict copyright infringement, pressed for answers and made vague threats about possible changes in intellectual property law that could result if higher education as a whole does not adopt a more aggressive approach.

Rep. Howard L. Berman (D-Calif.), the chairman of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, set the harsh tone of an exasperated parent in his introductory remarks, in which he dangled a nebulous  but scare-you-straight sanction that colleges could face if they don’t shape up soon. “I’m concerned that current law isn’t giving universities enough incentive to stop piracy,” said Berman, who represents Hollywood, the Capitol Hill of the entertainment industry. “The statistics demonstrate that students engage in rampant piracy and while Congress has given universities many exemptions from copyright liability, it might be time to condition some of those exemptions on action taken by universities to address the piracy problem.”

Throughout the hearing, members also alluded to the possibility that safe harbor requirements -- those minimal standards a college must meet to combat piracy in order to avoid risk of litigation at an institutional level under the Digital Millennium Copyright Act -- could be expanded. If that happened, universities could face a bigger burden of responsibility, particularly when it comes to installing technology that could block peer-to-peer file sharing.

College leaders say there's a good reason why such technology isn't already commonly in place. Although a new “University Task Force on Requirements for Filtering Networks” has been established to facilitate the development of new filtering technologies, John Vaughn, executive vice president of the Association of American Universities, said that to date, no technology exists that satisfies the three-pronged test. Colleges, Vaughn said, want filtering technology that is cost-effective, protects student privacy, and can discriminate between illegitimate file sharing and legitimate uses of peer-to-peer technology for research and other academic purposes. 

"It is essential for colleges and universities to maintain an open, unfettered environment for discussion, debate and dissemination of information," Vaughn said in his written testimony. (Cary Sherman, president of the Recording Industry Association of America, which just last week asked colleges to aid its enforcement efforts by forwarding "pre-litigation" letters to students illegally sharing files, countered that “the overwhelming, if not sole, use of these applications is to illegally download and distribute copyrighted works.")

Vaughn further outlined the steps that academic leaders have already taken to combat copyright infringement, including the distribution of information on best practices for stopping the problem, the evaluation of existing filtering technologies, and the creation of the new task force to promote the development of new ones through its work with the entertainment industry over the next four months.

On an institutional level, many colleges have made alternative, legal file sharing programs available at low or no cost to students, and Vaughn cited a finding in the 2006 Campus Computing Survey that more than 80 percent of colleges and universities have policies in place specifically addressing peer-to-peer file sharing. Lawmakers were quick to fire back with the question, however, of how many of these policies are actually being enforced. (Also testifying Thursday were  a representative of the University of California at Los Angeles, which was praised by Berman as an example of an institution that is aggressively responding to illegal file sharing, and an official of Red Lambda, a file-share-blocking software that committee members held up as an example of the sort of technology that colleges might use to block improper downloading.)

Vaughn took one for the team Thursday as a representative and defender of what universities have done to combat piracy, yes -- but more to the point in the subcommittee’s eyes, what they have not. Purdue University, which attracted the ire of legislators after a recent Associated Press report suggested that leaders there are doing little to combat illegal file sharing on campus, succeeded in further irritating the committee by declining an invitation to testify. “Purdue chickened out,” said Berman, in a play on words that elicited groans from some in the audience.

A Purdue spokeswoman, Jeanne Norberg, said that university officials had received a request from the Judiciary Committee last week asking someone from the university to appear to explain the comments in the Associated Press account (in which a spokesman said that Purdue officials don't see investigating file sharing "as our role") and the university’s policies on illegal file sharing. (Norberg said the comments had been taken out of context.)

She said that while Purdue officials were willing to participate, its administrators waited through last week and until Monday for a formal notice from the committee with details about the hearing. When none came, she said, university administrators concluded “reluctantly” that they could not prepare sufficiently for Thursday’s hearing.

“It takes time to prepare for such a significant hearing, and with our CIO out of town, I needed to know, Should I bring everybody back from all over the globe to work on this? I needed to know this was going to move forward, and we never got that word,” said Norberg, director of the university news service.

 A spokeswoman for the committee disputed Norberg’s version of events. She said she had a confirmation from the fax she sent to Purdue’s chosen recipient, and when asked whether she considered Purdue to have declined to participate, she said emphatically, “Yes.” Are the committee’s “invitations” turned down frequently, she was asked? She shook her head.

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