Colleges Should Stand Up to the Entertainment Industry

Times have changed, and just because the music and movie industries face challenges is no reason for them to turn higher ed into their enforcers, writes Kevin Carey.

September 23, 2008

In 1992, college diploma fresh in hand, I decided to take a year off before going to graduate school. (By "decided" I mean "forgot to take the GRE.") A friend suggested that, in terms of good places to squander 12 months of one's youth, it was hard to beat Chapel Hill, N.C. So we found a cheap apartment near the UNC campus and got jobs waiting tables at a barbecue restaurant. (Want to out yourself as a damn Yankee? Use the word "barbecue" as a verb.) Slinging pulled pork sandwiches paid just enough to cover rent, gas, drinks, and music. For the latter, I spent a great deal of time in Schoolkids Records, one of those iconic stores where every aisle held the promise of a long-sought European bootleg and the girl behind the counter was unattainably cool.

Earlier this year, upon returning to Chapel Hill for the first time, I walked up Franklin Street looking for some new music and perhaps a few fond memories -- only to discover that Schoolkids was closed, shut down just a few months prior, after 30 years in business. Apparently, in 2008 you can't make money selling compact discs on the main drag of a music-soaked college town, one block from a campus of 30,000 students.

For me, it was a reminder that times change. Unfortunately, the entertainment industry seems to have drawn a different conclusion, namely that that it has no choice but to wage a futile war against colleges and students that could threaten the essential purpose of higher education.

By now we're all familiar with the Recording Industry Association of America's dogged campaign of responding to a sea change in the way music is distributed and sold by suing 12-year olds and senior citizens for hundreds of thousands of dollars because they made $50 worth of songs available on a filing-sharing network. Truly there is no industry that hates its customers more.

The "haul grandma into court" strategy proved to be somewhat of a PR debacle. So the RIAA took aim at a less sympathetic target: college students, who are often assumed to be spoiled, amoral, and in need of some kind of comeuppance or another. There was, however, a complication: music companies can locate the Internet Protocol (IP) address of copyright infringers on their own. But they have to ask the Internet Service Provider (ISP) for the name of the actual person who "lives" at that address. And at most universities, the ISP is the university itself.

So the music industry began deputizing colleges in the hunt for music thieves, asking them to pass along "settlement letters" which offer students the chance to pay a few thousand dollars in order to forestall a ruinous lawsuit. (Since most undergrads don't have that kind of money lying around, the industry even created a convenient Web site where students can charge the fine to one of those credit cards bearing usurious interest rates that you get after filling out an application in exchange for a free T-shirt.)

Some colleges refused to participate. Many others, wanting to cut down on illegal activity and wary of losing their legal immunity under the 1998 Digital Millennium Copyright Act, agreed. That's increasingly looking like a bad decision. The suits have done nothing to stem the tide of illegal file-sharing. Now the industry is pursuing a much more intrusive and dangerous strategy: trying to require universities to create an electronic infrastructure for snooping, privacy violation, and censorship that runs wholly counter to what an institution of higher learning should be. And in doing so, they're using colleges' past good-faith cooperation against them.

The technical term is "deep packet inspection," a process by which universities can examine the contents of electronic files that pass back and forth on their networks to see if they contain copyrighted material like the latest M.I.A. single or an episode of Gossip Girl. It's the equivalent of requiring institutions to steam open and read every letter that passes through the campus mail. It's also expensive, slows down the entire network, and won't actually work, because the small number of students who are responsible for the most egregious piracy also tend to be the students with the technical know-how needed to stay three steps ahead of whatever new filtering mechanisms the university might devise.

The entertainment industry insists that it doesn't necessarily want to go this way, but that's obviously a lie. Earlier this year, it supported legislation in Illinois and Tennessee that would have required colleges to implement "technology-based deterrents" to piracy if they received more than a certain number of infringement notices. Around the same time, colleges across the country began seeing a 20-fold increase in the number of infringement notices they received.. When colleges protested the new burden, the RIAA said their past voluntary cooperation meant they were legally obligated to comply in the future.

Then a blanket requirement to develop "technology-based deterrents" was included in the new version of the federal Higher Education Act enacted in August. It's a safe bet that when the meaning of that phrase is inevitably litigated, industry lawyers will argue that only deep packet inspection will suffice. Perhaps they'll cite as evidence the technology's widespread use by censors in the Chinese government.

Why, one might ask, are colleges being forced to bear the brunt of the entertainment industry's campaign, when (flawed industry studies notwithstanding) most piracy occurs far outside of campus walls? Simple: In the world of ISPs, colleges are small potatoes. They also receive direct state and federal funding, making them vulnerable to legislative pressure. The big content providers don't actually care that much if undergraduates steal music -- they know as well as anyone that students form tastes and preferences in college that generate lots of money down the road. This is simply a way to establish precedent, an opening skirmish in a larger, longer war with their real enemy: big ISPs like Verizon, Comcast, and AT&T. Universities are Lilliputs compared to these corporate giants, which have money, lawyers, and political clout that matches the content providers and more. The entertainment industry is trying to soften up the legal ground so it can eventually require all ISPs to automatically spy on their customers. If privacy and academic freedom suffer along the way, well, you know what they say about collateral damage.

To be clear, I'm no apologist for stealing music. There are 10,000 songs on my iPod and I paid for every one of them. Information may want to be free, but that doesn't mean we have to do what it wants or expect musicians to make a living as itinerant troubadours who sell memorabilia on the side. I get paid to write occasionally and I'd be pretty cheesed if someone published my words without permission or compensation. But if that happened, it would be my problem -- not the problem of whichever ISP happened to carry the digital words to and fro.

For half a millennium, universities have stood as places where knowledge is created, stored, and exchanged. The storage function is eroding as digital information can be housed anywhere and accessed everywhere. But the role of universities as centers of knowledge exchange has become all the more vital. Higher education allows communities of scholars and students to engage with one another in deep, sustained ways. At their best, universities also welcome political and cultural views that are far outside of the mainstream. It's not an easy role to play, requiring strong institutions that are committed to values of inquiry and openness. As the speed and volume of communication are constantly amplified by new technologies, colleges and universities will be irreplaceable as places that nurture and sustain these kinds of substantive dialogues, free from the threat of censorship and intrusion.

It's easy to be nostalgic for days gone by. But I'm not getting my early 20s back and the music industry will never return to the glory days when people bought millions of copies of a single physical CD full of songs, some of which they wanted to buy and some of which they didn't, because that was the only choice they had. We're witnessing a desperate industry shackled to a 20th century business model try to undermine one of the foundational purposes of higher education by forcing colleges to create an infrastructure for electronic spying that potentially would be available for any corporate interest with enough money to hire a lobbyist. It's unacceptable, and an issue on which all colleges and universities should take a stand.


Kevin Carey is the research and policy manager of Education Sector. He blogs about K–12 and higher education policy issues at The Quick and the Ed. An archive of his Outside the Circle columns may be found here.


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