Opening up The New York Times last week, I stumbled across an article that outraged me. "Colleges Chase as Cheats Shift to Higher Tech" detailed the struggle of some academics against new, high-tech forms of "cheating" that are based in Internet use, iPods, cellphones, and PocketPCs. The tone of the article was one of dismay at the collapse of morality in education. As I watched the article climb the "most e-mailed list" on the Times Web site through the day, my outrage increased.
Few would want to be caught defending "cheating," especially in academe, especially in a time when we in education struggle with everything from steroid abuse, to massaged college applications, to fraudulent journalism, to high-profile plagiarism. And no one really wants to encourage or even condone most dishonesties -- in the classroom or out. There is, however, always a scale of potential harm on which we measure human sin, and for me, the most apparent dangers mentioned in this article were not any student behavior described, but the fact that one journalism professor quoted in the article is using valuable college course instructional time to give spelling tests (the article says that he “caught students trying to use spell check in an exam partly testing spelling ability") and that so many American university faculty and administrators are failing to see where the actual problem lies.
As a graduate student, as a course instructor, I have come to the conclusion that I welcome the arrival of the world -- in the form of ubiquitous contemporary technology -- into the stultified environment of higher education. I must also welcome these new methods of cheating because, perhaps, only under the pressure of this now powerfully armed student revolt will high school teachers and college professors finally begin to adapt to new realities and begin to actually teach and facilitate learning and assess students in real and relevant ways.
This one instructor’s spelling tests are an easy target, but he is not unusual. In classroom after classroom, all across the nation, students are being asked to memorize and regurgitate trivia at the expense of time spent learning what is essential in the 21st Century. As one letter to the Times editors asked, "In today's information age, where a body of information in all but the narrowest of fields is beyond anyone's ability to master, why aren't colleges teaching students how to research, organize and evaluate the information that is out there?" Why, one must ask, would a journalism professor in 2006 be testing skills from the Remington typewriter and linotype era? Reporters I know use tape recorders, PocketPCs, and laptops, enter their stories electronically via software that has spell-check, and send it to their editors. If the journalism professor in the Times article is teaching spelling (and if he is not teaching spelling why would he be giving a test assessing that skill?), he is not using that time for skills – knowing how to set up spell-checkers, how to use and not use grammar checkers, how to properly refine auto-correct and word prediction software -- that will be essential to his students’ survival.
It has long been academe's dirty little secret that bad instructors and bad assignments create cheating. If knowledge of a meaningless list of facts is being assessed, if spelling is being measured, if memorization of equations is the goal of a course, students can and will cheat. Perhaps they should cheat. As a John Jay College instructor, Daniel Newsome, said in a letter about the Times article, "In the real world, we use cheat sheets all the time. Why not in school? Life is too short to fight against the real world and constantly be disappointed with the outcome. Embrace cheating ... but perhaps give it a new name." If, however, processing information is the issue, if creative solutions are being sought, if students are being asked to develop new syntheses, then cheating will be much rarer, and much more difficult, technology use will become essential, and learning will be far more relevant.
We need to face the facts. If I need a quick answer outside of school and can't quite remember what I need to know, I will Google the topic, or I will call someone, or text someone, or e-mail someone. One of these sources will, if I know how to operate this technology efficiently and effectively, provide me with the essential information. That's not cheating, that is life. Only in a classroom is this considered "wrong." Everywhere else it is viewed as "intelligent," because we all know that we cannot know everything.
Outside the classroom, cell phones, PDAs, PocketPCs, Internet access is everywhere because we need it and use it in our information driven lives. But inside the classroom, the very skills humans need to succeed are discouraged and viewed with alarm. So schools do not teach effective use of Google, of text-messaging, of instant-messaging. They don't teach collaboration. They barely teach communication outside the stilted prose only academics use. No wonder students are prepared for nothing except more school.
"If they'd spend as much time studying" as they do cheating, a University of Nevada at Las Vegas dean says in the Times article, "they'd all be A students." The question for the dean is, what would they have an "A" in? Rewriting Wikipedia to please a professor? Spelling? Regurgitating information that any competent search engine user could find in thirty seconds? Perhaps the skills the "cheaters" are learning are the far more valuable ones. These skills will carry them forward in ways memorization of spelling, quadratic formulas, scientific terms and historical dates simply will not.
What must be learned through education is the processing of this instantly available information. How do you find what you are looking for? How do you check for quality and accuracy? How do you cite sources and avoid plagiarism? How do you investigate the sources of others or determine when others have plagiarized? Just three days after publishing the "Cheating" article the Times itself had to publish a lengthy retraction of a front page story. The prominent printing of false information could have been avoided, the newspaper's Public Editor noted, had the news staff simply Googled its own articles. Nothing could illustrate the changing needs of curriculums more clearly.
There is also the issue of educational discrimination. When schools fight against technology, they are fighting access to education for people who learn and function differently. Technology, from computers to calculators to classroom cellphones, enables a wide variety of students who would otherwise be left out to participate and succeed. Technology in the hands of all students allows disabilities and functional deficits to be invisibly accommodated so that knowledge can be developed, nurtured, and evaluated on terms fair to everyone.
So, no, the problem is not cheating. The problem is firmly one of instructional and evaluation technique. It will not be solved until teachers and professors figure out that understanding and the ability to work with knowledge is what counts, and that anything you can instantly Google, or store in your calculator, or retrieve via quick text-message or phone call need not be remembered, nor tested, because, obviously, you will always be able to instantly Google it, or store it in your cellphone, or get someone to text it to you.
Ira Socol is a special education technology scholar in Michigan State University's College of Education.
This afternoon, in a Congressional office building, Rep. Howard Berman (D-Calif.), chairman of the House of Representatives Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property, will convene a public hearing about digital piracy on college and university networks. Berman is Hollywood’s man in Congress -- literally! His Los Angeles Congressional district is home to many major movie and music studios.
Today’s hearing is the latest in a continuing Congressional review of digital piracy -- both on and off college networks. Digital piracy -- be it copy shops in Asia churning out thousands of counterfeit copies of CDs, DVDs, and computer software, or individuals downloading music, movies and software from the Internet -- involves big bucks. A recent report by the Los Angeles Economic Development Corporation suggests that all forms of digital piracy and counterfeiting (including counterfeit clothing) cost Los Angeles area companies some $5.2 billion in lost revenue in 2005, and state and local governments $483 million in lost tax revenue. The development corporation reports that digital piracy and product counterfeiting cost Los Angeles 106,000 jobs in 2005.
There can be no posturing about the core issue: Copyright is a good thing. Copyright protects the rights of individuals and organizations that create and distribute music, movies, and other kinds of digital content and resources. Piracy is theft. Piracy is bad. Piracy is illegal.
That said, while there is no question that digital piracy -- by copy shops or college students -- is wrong, so too is the underlying assumption of today’s hearing: that college students are the primary source of digital piracy affecting the music and movie industries, and that campus officials are implicitly complicit in the illegal downloading done by college students.
Late last month, Cary Sherman, president of the Recording Industry Association of America and point person in the entertainment industry’s campaign to stem the tide of digital piracy, particularly among college students, sent a letter to some 2,000 college and university presidents, delivered via e-mail by David Ward, president of the American Council on Education. Sherman offered a pro forma acknowledgement that there has been some progress regarding “illegal file trafficking of copyrighted content on peer-to-peer (P2P) systems,” stating that the RIAA and others in the entertainment industry are “grateful for the proactive work of many institutions.” But Sherman’s letter also stated clearly that because “the piracy problem on campuses remains extensive and unacceptable,” the RIAA felt “compelled to escalate [its] deterrence” efforts, as reflected in a new wave of lawsuits under the Digital Millennium Copyright Act, announced earlier in February.
(Meanwhile, there’s also some back room speculation around Washington that Mr. Sherman and others in the entertainment industry would like Congress to deal with digital piracy in the long-delayed reauthorization of the Higher Education Act. Who knows: Perhaps violations of copyright law will join drug convictions as cause for students to be ineligible to participate in government financial aid programs?)
The RIAA’s February lawsuits and Sherman’s February 28 letter to college presidents appears to be the first phase of a spring offensive targeting college students and coercing campus officials. The firm but polite language of Sherman’s letter outlines “a reasonable role that college administrators can play” in stemming P2P downloading. The last page of Sherman’s four-page letter identifies four “ways to prevent/reduce student exposure to lawsuits and DMCA notices.”
The RIAA wants colleges and universities to (1) implement a technical network solution; (2) offer an online music service to students; (3) take disciplinary action against students; and (4) provide user education programs about copyright and downloading. Additionally, in his cover letter Sherman suggests that campus officials can “faciliate the [RIAA’s] new deterrence program by forwarding pre-lawsuit letters” to students and others with access the campus network to settle legal claims ahead of RIAA lawsuits
All this smacks of extortion. The RIAA's proposed “remedies” represent an easily inferred threat to campus officials: Do as we “suggest” or we will sue your institution and hold you liable for the activities of your students.
The RIAA cites data that “college students, the most avid music fans, get more of their music from illegal peer-to-peer downloading than the rest of the population: 25 percent vs. 16 percent (percentage of total music acquisition from peer-to-peer downloading).” The RIAA claims that “more than half of college students download music and movies illegally.”
Some of this is simply a numbers game for press releases. The term “college student” generically applies to some 17 million Americans, ages 16-67, who take college courses. In this context, only a small proportion of the nation’s 17 million “college students” depend on campus networks for Internet access, and a far smaller number are downloading digital content. Yes, the downloading may be illegal, but the RIAA’s numbers don’t document some 8.5 million students engaged in illegal P2P activity.
While traditional college students who depend on campus networks for Internet access may, as the RIAA claims, get more of their music from P2P downloading than the general population, the size of the denominator of this college student population -- perhaps some 2 to 2.5 million full-time undergraduates who reside in college dorms and who depend on campus networks for Internet access -- pales when compared to the tens of millions of consumers who purchase broadband services from cable and telecommunications companies such as AT&T, Comcast, Earthlink, TimeWarner and Verizon.
The real numbers suggest that the RIAA has lost sight of the hemorrhaging of digital content via consumer broadband services as it focuses its legal campaign and PR efforts on college students. (In 2005, concurrent with the Supreme Court’s Grokster decision, a billboard in Los Angeles promoting SBC/Yahoo's DSL service used the tag line "faster downloading of music, movies and stuff." Of course the billboard did not say anything about how to pay for "this stuff.")
Additionally, the RIAA's numbers on “John Doe” lawsuits filed in 2004 and 2005, culled from its own press releases, indicate that college students accounted for just 4 percent (329) of the more than 8,400 “John Does” targeted in RIAA filings. In other words, “consumer piracy” represents a far greater threat to the music industry than does the admittedly inappropriate and illegal downloading and file sharing activity of college students on campus networks. Moreover, while the RIAA’s February 28 news release asserts that “college students are the most avid music fans,” the RIAA’s 2005 Consumer Profile reveals that college students (ages 18-24) account for approximately a sixth (roughly 15-17 percent) of the music buying population; in contrast, consumers aged 25 and older purchase two-thirds (66.9 percent) of all recorded music.
Sherman asserts that while “many schools have worked with [the RIAA] to recognize the [P2P] problem and address it effectively … a far greater number of schools … have done little or nothing at all.” Not so! Data from the fall 2006 Campus Computing Survey indicate that the vast majority of colleges and universities have acceptable use policies to address copyright issues and digital piracy. A small but growing number of institutions are following the Cornell model of requiring network users -- students, faculty, and staff -- to complete an online user education tutorial about copyright, P2P, and acceptable use policies before they gain access to their campus e-mail accounts and the university network.
And many institutions punish students for inappropriate and illegal P2P activity. Poking fun at both campus officials and students, a 2003 "Doonesbury" cartoon highlighted the efforts of campus officials to pursue “digital downloaders.” More importantly, this past week the Educause CIO online discussion list has had an active conversation among campus officials about sanctions their instituitons impose for DMCA violations. In contrast, consumer ISPs provide no active user education on the P2P issue and do little or nothing to address digital piracy.
These numbers notwithstanding, the RIAA has not pursued consumer broadband providers on the copyright/downloading issue. When I raised this issue with an RIAA official in fall 2004, I was told, in essence, that the consumer broadband providers view litigation as a cost of doing business, while, in contrast, the RIAA knows that colleges and universities, when presented with the threat of litigation, will "jump."
The RIAA’s continuing -- and seemingly exclusive, if not myopic -- focus on college students as the primary source of digital piracy stands in stark contrast to the activities of its European affiliate. On January 17, the London-based International Federation of the Phonographic Industries threatened action against consumer broadband Internet Service Providers (ISPs) if they failed to move against users who illegally download digital content. Yes, the RIAA has sued individuals who used consumer broadband services to download or distribute digital content illegally. However, even as the illegal downloading and distribution on consumer networks presents a greater threat to digital content than the inappropriate P2P activity occurring over campus networks, the RIAA seems to focus its major PR (and Congressional) efforts on college students.
The campus community has been largely silent in response to the RIAA’s continuing PR assault. Yes, we in the campus community do care about copyright: the Association of Governing Boards of Colleges and Universities’ list of “Top 10 Public Policy Issues for Higher Education in 2005-6” cites intellectual property as a key policy issue for campus officials, noting that “respect for intellectual property -- created as part of faculty research and teaching or provided as commercial content by the information and entertainment industries -- will help institutions maximize and protect their own resources.” And yes, sadly, an occasional campus official has offered up unfortunate (if not just plain dumb) public comments about P2P on campus networks, saying that they don’t consider it a top campus IT priority.
Of course, no college president condones piracy. Still, it is discouraging, but not surprising, that college presidents have not been willing to challenge the RIAA’s PR campaign. Several have offered up their names and the prestige of their institutions to support the RIAA’s PR efforts. To date, however, none have stepped forward to state firmly that while their institutions are addressing digital piracy via user education and student sanctions, they also will not submit to the bullying tactics of RIAA officials.
Let’s be clear: I'm not condoning digital piracy. I'm on record in a variety of forums and published articles, spanning two decades, that copyright matters. Campuses and college students are an admittedly easy target for the music and movie industries concerned about digital piracy. But we are the wrong target. We in the campus community are doing more about P2P and digital piracy -- and doing it far better -- than the consumer broadband ISPs that provide Internet service to more than 45 percent of American households (more than 35 million homes and small businesses).
The RIAA's singleminded focus on college students -- and easily inferred threats to campus officials -- misses the larger issue: Digital piracy is a consumer market problem, not simply a campus issue.
Kenneth C. Green
Kenneth C Green is the founding director of the Campus Computing Project and a visiting scholar at the Claremont Graduate University.
As many in the higher education community are well aware from news coverage here and elsewhere, the Recording Industry Association of America (RIAA), on behalf of its member labels, recently initiated a new process for lawsuits against computer users who engage in illegal file-trafficking of copyrighted content on peer-to-peer (P2P) systems. In the new round of lawsuits, 400 of these legal actions were directed at college and university students around the country. The inclusion of so many students was unprecedented. Unfortunately, it was also necessary.
In the three and a half years since we first began suing individuals for illegal file-trafficking, we have witnessed an immense growth in national awareness of this problem. Today, virtually no one, particularly technology savvy students, can claim not to know that the online “sharing” of copyrighted music, movies, software and other works is illegal. By now, there is broad understanding of the impact from this activity, including billions of dollars in lost revenue, millions of dollars in lost taxes, thousands of lost jobs, and entire industries struggling to grow viable legitimate online market places that benefit consumers against a backdrop of massive theft.
We have made great progress -- both in holding responsible the illicit businesses profiting from copyright infringement and in deterring many individuals from engaging in illegal downloading behavior. Nevertheless, illegal file-trafficking remains a significant and disproportionate problem on college campuses. A recent survey by Student Monitor from spring 2006 found that more than half of college students download music and movies illegally, and according to the market research firm NPD, college students alone accounted for more than 1.3 billion illegal music downloads in 2006.
We know some in the university community believe these figures overstate the contribution of college students to the illegal file-trafficking problem today. Yet new data confirms that students are more prone to engaging in this illegal activity than the population at large. While college students represented only 10 percent of the sample in the online NPD study, they accounted for 26 percent of all music downloading on P2P networks and 21 percent of all P2P users in 2006. Furthermore, college students surveyed by NPD reported that more than two-thirds of all the music they acquired was obtained illegally.
Moreover, our focus on university students is not detracting from our continuing enforcement efforts against individuals using commercial Internet Service Provider (ISP) accounts to engage in this same behavior. Indeed, we have asked ISPs to participate in the same new process that we have implemented for university network users.
Yet this is about far more than the size of a particular slice of the pie. This is about a generation of music fans. College students used to be the music industry’s best customers. Now, finding a record store still in business anywhere near a campus is a difficult assignment at best. It’s not just the loss of current sales that concerns us, but the habits formed in college that will stay with these students for a lifetime. This is a teachable moment -- an opportunity to educate these particular students about the importance of music in their lives and the importance of respecting and valuing music as intellectual property.
The prevalence of this activity on our college campuses should be as unacceptable to universities as it is to us. These networks are intended for educational and research purposes. These are the environments where students receive the guidance necessary to become responsible citizens. Institutions of higher education, of all places, are where people should learn about the value of intellectual property and the importance of protecting it.
The fact that students continue to engage in this behavior is particularly egregious given the extraordinary lengths to which we have gone to address the problem. Our approach always has been and continues to be collaborative -- partnering with and appealing to the higher motives of universities. We have met personally with university administrators. We have provided both instructional material and educational resources, including an orientation video to help deter illegal downloading. We have worked productively through organizations like the Joint Committee of the Higher Education and Entertainment Communities. We have participated in Congressional hearings.
We have informed schools of effective network technologies to inhibit illegal activity. We have licensed legitimate music services at steeply discounted rates for college students and helped to arrange partnership opportunities between universities and legitimate services. We have stepped up our notice program to alert schools and students of infringing activity. And, of course, we have as a last resort brought suit against individual file-traffickers.
With this latest round of lawsuits, we have initiated a new pre-lawsuit settlement program intended to allow students to voluntarily settle claims before a suit is actually filed. We have asked for school administrations’ assistance in passing our letters on to students in order to give them the opportunity to settle a claim at a discounted rate and before a public record is created. This is a program initiated in part as a response to defendants who told us they would like this opportunity, and we are encouraged by the swift response of so many schools. Lawsuits are by no means our desired course of action. But when the problem continues to persist, year after year, we are left with no choice.
An op-ed writer recently published in this forum described this approach as bullying. There is a big difference between using “bullying tactics” and using a “bully pulpit” to make an important point. Should we ignore this problem and stand silent as entire generations of students learn to steal? Should we not point out that administrators are brushing off responsibility, choosing not to exercise their moral leadership on this issue? This problem is anything but ours and ours alone. If music is stolen with such impunity, what makes term papers any different? Yet we know university administrators very aggressively pursue plagiarism. Why would universities -- so prolific in the creation of intellectual capital themselves -- not apply the same high standards to intellectual property of all kinds? This is, after all, a segment of our economy responsible for more than 6 percent of our nation’s GDP.
Furthermore, a Business Software Alliance study conducted last year found that 86 percent of managers say that the file-sharing attitudes and behaviors of applicants affect on their hiring decisions. Don’t administrators have an obligation to prepare students for the real world, where theft is simply not tolerated? Our strategy is not to bully but to point out that the self-interest of universities lies remarkably close to the interests of the entertainment industries whose products are being looted. And, most importantly, we have sought to do so in a collaborative way.
It doesn’t have to be like this. We take this opportunity to once again ask schools to be proactive, to step up and accept responsibility for the activity of their students on their network -- not legal responsibility, but moral responsibility, as educators, as organizations transmitting values. Turning a blind eye will not make the problem go away; it will further ingrain in students the belief that a costly and illegal pastime is sanctioned, and even facilitated, by school administrations.
The necessary steps are simple. First, implement a network technical solution. Products like Red Lambda’s cGrid are promising as effective and comprehensive solutions that maintain the integrity, security, and legal use of school computing systems without threatening student privacy. Some schools have used these products to block the use of P2P entirely, realizing that the overwhelming, if not sole, use of these applications on campus is to illegally download and distribute copyrighted works. For schools that do not wish to prohibit entirely access to P2P applications, products such as Audible Magic’s CopySense can be used to filter illegal P2P traffic, again, without impinging on student privacy.
Second, offer a legal online service to give students an inexpensive alternative to stealing. One such service, Ruckus, is funded through advertising and is completely free to users. When schools increasingly provide their students with amenities like cable TV, there is simply no reason not to offer them cheap or free legal access to the music they crave.
Third, take appropriate and consistent disciplinary action when students are found to be engaging in infringing conduct online. This includes stopping and punishing such activity in dorms and on all Local Area Networks throughout a school’s computing system.
Some administrations have embraced these solutions, engaged in productive dialogue with us to address this problem, and begun to see positive results. We thank these schools and commend them for their responsible actions.
Yet the vast majority of institutions still have not come to grips with the need to take appropriate action. As we continue our necessary enforcement measures -- including our notices and pre-lawsuit settlement initiative -- and as Congress continues to monitor this issue with a watchful eye, we hope these schools will fully realize the harm their inaction causes them and their students. We call upon them to do their part to address this continuing, mutual problem.
Mitch Bainwol and Cary Sherman
Mitch Bainwol is chairman and CEO and Cary Sherman is president of the Recording Industry Association of America.
College students are flocking to social networking sites on the Internet in stunning numbers, often unaware of the potential dangers that can arise there. These dangers primarily arise from posting personal information online that can be viewed by criminals, potential employers, and school administrators, which can result in identity theft, loss of job opportunities, and violations of school rules. Campus administrators should inform their students about the potential dangers of using social networking Web sites -- but they should be cautious not to do so in ways that could make them liable if the students engage in illegal behavior.
Students view social networking Web sites as private databases that permit them to communicate using a multimedia-based approach, but many don’t realize the potential dangers that accompany this type of activity. Because of this, colleges must provide their students with information regarding three major concerns in sharing information online: (1) the threat of criminal behavior; (2) how they might be seen by potential future employers; and (3) possible violations of their institution’s student code of conduct.
Although many students believe the personal information they share on social networking sites is not viewed by others, that information can provide criminals with enough detail to identify the student. In doing so, a student who posts personal details online can give criminals enough information to commit crimes such as stalking or identity theft. Because of the high risk of such crimes when personal information is posted on social networking Web sites, colleges should advise their students not to share private information online, such as names, addresses, email addresses, birthdates and phone numbers.
Information that students may think is personal could be viewed by potential employers if posted on social networking sites. As a result, colleges and universities should warn their students not to post inappropriate messages or photographs that could negatively influence an employer’s perception. Many employers are aware of social networking Web sites, and some use these sites to check for negative attributes of an applicant.
A recent New York Times article highlighted this concern: “[N]ow, college career counselors and other experts say, some recruiters are looking up applicants on social networking sites ... where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” Because the information posted by students on social networking Web sites is often publicly viewed, colleges should remind their students that the information they post on these sites is not private, and that potential employers could use that information to form crucial first impressions about student applicants.
Much of the information that would create concern among potential employers if viewed on a social networking Web site could also violate a school’s code of student conduct. These student rules and restrictions are often found in a student handbook or similar school publication. The Syracuse Post-Standarddescribed this issue as “a growing trend where officials nationally are paying attention to what their students are posting on the Internet.”
Students have been found guilty of violating these student regulations at numerous schools. At Pennsylvania State University, students created a Facebook group entitled “I rushed the field,” to which students joined and posted photographs and names of people on the field after the school’s win over Ohio State in football. After accessing the Facebook group’s Web page, university police used that information to identify more than 50 students who violated the school’s policy by rushing the field after the football game.
In addition, a growing number of universities are creating policies to regulate their athletes’ use of social networking Web sites. Athletes present a unique public image for the university, and schools could be embarrassed if athletes post information online about participating in illegal activities.
In May 2005, students on Louisiana State University’s swim team were reprimanded after athletic administrators discovered the students belonged to a Facebook group that included disparaging comments about swim coaches. One student transferred to Purdue University to avoid being reprimanded and expressed surprise that administrators had found the postings online. Athletic administrators at Florida State University and the University of Kentucky recently warned their athletes to be careful what they post.
Challenges for Colleges, Too
Just as social networking sites pose a set of potential risks for students, they create a set of questions and potential problems for institutions as well.
Although most colleges do not currently monitor their students’ online activities, university police often investigate tips received about information posted on the Internet. As a result, university police and school administrators may learn about information posted on social networking Web sites that violates the school’s code of student conduct.
Three primary questions arise in the context of monitoring these activities. First, is the college monitoring its students’ online activities regularly? A college that doesn’t monitor its students’ online activities should analyze whether monitoring is necessary.
Second, if the institution monitors this activity, why has it chosen to do so? If a college monitors its students’ online activities to assure that students act in accordance with its mission, such as a military or religious institution, then it may create a “duty of care” toward its students. A duty of care would obligate a college to take all reasonably practicable steps to prevent its students from harm. If a college with a duty of care toward its students does not take all reasonably practicable steps to prevent harm to its students, the college’s actions may be negligent and could expose the college to lawsuits. But colleges that do not regularly monitor their students’ online activities and only investigate tips of potential crimes online may be free to continue periodic monitoring without assuming a duty of care.
Third, has the college informed its students of its policy toward monitoring? A school that informs all incoming students of its policy of monitoring students’ online activities during orientation or posts this information prominently on campus may be more likely to assume a duty of care toward its students. If most students are not informed of a school’s policy of monitoring such activities, however, the school may be less likely to have assumed a duty of care toward its students, because there is likely a lower expectation that the school would monitor these activities.
In addition, the specificity and clarity of a school’s statements informing students of the school’s monitoring policy should be considered. If the school’s policy statement is ambiguous or its scope is unclear, students may be less likely to rely upon schools to prevent illegal acts resulting from online activity. Statements that clearly state the school’s policy of monitoring, including its scope and application to specific online activities, such as social networking Web sites, are more likely to create a duty of care for the school.
Colleges and universities must inform students about the particular dangers they face online. But if schools actively monitor their students’ online activities and students are aware of this policy, they may have a duty of care that includes preventing any illegal acts committed as a result of information posted online.
Thus, schools should inform their students about the potential dangers of using social networking Web sites, but should also be careful not to become liable if the students engage in illegal behavior.
Sheldon Steinbach and Lynn Deavers
Sheldon E. Steinbach and Lynn M. Deavers are lawyers in the higher education practice at the Washington law firm Dow Lohnes
Remember Ronald Reagan? During the primary campaign in 1980 and later his presidential debates with Jimmy Carter, Reagan would offer an admonishing “there you go again” whenever his opponents made statement he deemed to misrepresent his positions.
Clearly we need someone to offer a very public, very stern, and clearly admonishing “there you go again” to Cary Sherman of the Recording Industry Association of American and Dan Glickman, the former Congressman and cabinet secretary who now serves as president of the Motion Picture Association of America. Sherman and Glickman, along with the MPAA and RIAA, have successfully “swiftboated” higher education on the issue of P2P – the illegal downloading, “peer to peer,” of digital content. They have continually and successfully portrayed college students as digital pirates and campus officials as unconcerned about and unresponsive to the use of campus networks for the illegal P2P downloading of copyrighted content, specifically movies and music.
Of course, ample data clearly indicate that illegal P2P downloading is a really consumer market problem, not limited to college students and college campuses. For example, college students accounted for less than 4 percent of the more than 8,400 John Doe lawsuits for illegal P2P downloading filed by the RIAA in 2004-25. Data from my annual Campus Computing Survey confirm that the vast majority of colleges and universities have campus policies to address illegal P2P and to inform students about appropriate use issues related to their access to and activities on campus networks. Moreover, colleges and universities are far more conscientious and concerned about illegal P2P activity than are the consumer broadband providers such as AT&T, Comcast, Earthlink, and TimeWarner, that, at times, implicitly promote P2P downloading as a reason to upgrade to higher speed consumer broadband services.
The latest episode in the MPAA/RIAA swiftboat campaign on P2P unfolded on November 9, via the long awaited legislation to reauthorize the Higher Education Act of 1965. Buried in the legislation, now called “The College Opportunity and Affordability Act of 2007,” are Congressional mandates on illegal P2P activity that take dead aim at colleges and universities.
Section 494 of the bill (on page 411 of the 747 page document) offers provisions to address “Campus-Based Digital Piracy.” In current format, the bill would require any college or university participating in federal student financial aid programs -- meaning almost all, from the nation’s elite research universities to local community colleges, as well as the vast majority of for-profit colleges -- (a) to “make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copy-righted materials” and (b) to “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.”
Give them due credit: Glickman and Sherman deserve points for persistence. As drafted, Section 494 reflects the key points Mr. Sherman pressed in a letter to college presidents distributed by the American Council on Education earlier this year: Buy a subscription service and acquire a “technology solution” to deter illegal P2P activity. And yet these provisions are, in essence, extortion: the message to campus officials, initially in Sherman’s letter and now in the provisions of Section 494, is that you can buy your way out of the P2P quagmire.
Rather than address the proliferation of P2P activity in the consumer market, often aided and abetted by consumer broadband service providers, the MPAA and RIAA have opted to focus on college students, campus networks, and college administrators – admittedly easy (and often unsympathetic) targets. In an era of digital media, are consumers understandably confused by the Supreme Court’s 1978 BetaMax decision that said they could use VCRs (and today, by extension, TIVO and similar technologies) to record “over the air” content for personal use? Probably so. But while the real, long-term solution on illegal P2P activity should focus on user education, the MPAA and RIAA apparently feel that legislation offers a quicker remedy.
Glickman and Sherman have successfully moved the Congressional activity on P2P from public hearings to draft legislation. While at face value these three requirements - to inform students and employees about illegal downloading, to develop plans for offering alternatives (i.e. subscription services) to P2P illegal downloading, and to explore technology deterrents -- seem reasonable, they are really the soft glove that hides the steel fist of federal enforcement. The legislation would implicitly require campuses to spend money for music subscription services such as Napster or Ruckus, and also spend significant sums for “technology-based deterrents” to prevent illegal P2P that experts in both the campus community and the corporate sector have deemed ineffective as a solution to address the problem of P2P in both the campus and consumer market.
(Speaking at a June 5 Congressional hearing on illegal P2P downloading, Vance Ikezoye, president Audible Magic, one of the firms that provides a “technology deterrent” for illegal P2P activity, acknowledged that “technology will never be the entire solution [to P2P piracy] … just one of the tools.” Adrian Sannier, CIO at Arizona State University, told members of Congress assembled for the June 5 hearing that his campus had spent approximately $450,000 on P2P technology deterrent software over the past six years. Sannier described P2P as an “arms race.”)
Moreover, the draft legislation authorizes (but does not appropriate) funds, controlled by the secretary of education, “to develop, implement, operate, improve, and disseminate programs of prevention, education, and cost-effective technological solutions, to reduce and eliminate the illegal downloading and distribution of intellectual property.” These grants may also be used for the “support of higher education centers that will provide training, technical assistance, evaluation, dissemination, and associated services and assistance to the higher education community [on matters of P2P piracy] as determined by the Secretary and institutions of higher education.”
Come on! Is this really a top policy priority for the Department of Education? Should the Department really be underwriting campus centers to conduct research and develop user education programs at the behest of the music and movie industries?
In current format Section 494 is, in essence, a set of unfunded federal mandates that will provide substantial subsidies to the music industry and to the firms that claim to offer successful “technology-based deterrents” intended to stem illegal P2P activity on campus networks. Of course the cost of these unfunded mandates will be passed on to students, either as increased tuition or as supplemental student fees. And then Members will, of course, complain loudly about the rising cost of higher education, a concern that forms the underlying premise of the overall Higher Education Act bill!
As drafted, Section 494 reflects the continuing efforts of the MPAA and RIAA to seek Congressional remedy for market shifts. For example, more than a dozen years ago Congress enacted a small tax on blank media –think of blank cassette tapes – because consumers were buying and copying music cassettes, perhaps one for their car, perhaps one for a friend. Note that the music industry did not complain to the manufacturers who, beginning in the mid-1970s, flooded the consumer market with dual deck cassette players. Rather, they went to Congress for redress, remedy, and revenue, rather than pursue other avenues toward resolution.
Interestingly and unfortunately, students have been MIA in the public discussions (or public posturing) about illegal P2P on campus networks. Yes, several surveys of full-time undergraduates confirm that students are in many ways ambivalent, apathetic, or uninformed about copyright and P2P issues. They have come of age with VCRs and TIVO and see little difference between recording a television program and downloading music. This has left college officials in the difficult position of condemning illegal P2P activity on campus networks, while arguing that their institutions should not be required to police this activity or provide the names of students allegedly engaging in illegal P2P downloading.
Students should get involved in this issue. If they are unhappy about the RIAA and MPAA lobbying efforts which would lead to Congressional mandates that could result in increased tuition because of the pass-through costs of subscription services and “technology-based deterrents” intended to stem illegal P2P, they can vote with their wallets. For example, what if students deferred their rush to the multiplex when new movies open each weekend? As it happens, the split in box office revenue between studios/distributors and local exhibitors (the companies that manage the multiplex in the mall) shift over time: distributors/film studios get more of the up-front money (i.e., during the first weeks of a release). So if students deferred their rush to the box office from the opening weekend to the third week, the net revenue (box office) might be the same over time, but they could affect the revenue that goes to the studios.
Illegal P2P downloading is a messy issue. But the swiftboating efforts of the RIAA and the MPAA to portray college students as the primary source of digital piracy will not resolve this problem, in either the campus or the consumer markets. Neither will federal mandates that ultimately will mean pass-through costs for students. The long-term solution lies in an aggressive mix of user education and new market models for digital content. The MPAA’s and RIAA’s efforts to secure remedy in the courts and Congress will neither provide resolution nor generate revenue in the market place.
Kenneth C. Green
Kenneth C. Green is the founding director of the Campus Computing Project and a visiting scholar at the Claremont Graduate University.