On Nov. 1, a short policy update landed in students’ e-mail inboxes, jointly signed by Director of Information Technology Policy Tracy Mitrano, Dean of Students Kent Hubbell ’67 and Judicial Administrator Mary Beth Grant, marking the latest piece in Cornell’s ongoing internet copyright infringement puzzle. In addition to reminding students (of what is becoming the commonly known) illegality of file share programs like Cornell’s intranet DC++, the e-mail alerted students to the increasingly aggressive prosecuting tactics of content owners like the Recording Industry Association of America and the Motion Picture Association of America.
The update explained how Cornell will be forwarding infringement notices it receives to the Office of the Judicial Administrator, and first time recipients will then take the newly-designed Copyright Education Course. However, Grant said that these referrals first go to Cornell’s Digital Millenium Copyright Act Agent, Mitrano. In the realm of passing on notifications from one authority to the next, a contentious question is how Cornell as a University handles the industry subpoenas issued to its students.
Mitrano, though highly critical on various counts of content owners’ demands, said that Cornell’s position is to comply when industry subpoenas are issued. They are addressed to the University Council’s Valerie Cross Dorn, who then collaborates with other University sectors like I.T. in determining how to treat them.
Critics, such as alumnus Elliot Bäck ’06, challenge Cornell’s passivity with the subpoenas by pointing to universities who have chosen to fight them.
The University of Oregon, recently faced with an RIAA subpoena for 17 of its students, moved to quash the RIAA’s subpoena on the grounds of facing “undue burden” in the identification of its accused students. Universities must locate students according to Internet Protocol addresses, which might entail a host of complications without proper investigation.
Bäck likens the accuracy of correctly identifying students from I.P.s to a high-probability gamble.
“It’s [essentially] like a lie detector test,” he said.
The decision to cooperate with subpoenas cannot be equated simplistically with an industry-sympathetic policy attitude, Mitrano stressed.
In her Oct. 22 editorial in the Cornell Chronicle, Mitrano enumerates troubling federal legal developments — as recently as the College Opportunity and Access Act of 2007 — which are pressing universities to take greater internal responsibility for network surveillance.
As Charles Nesson and Wendy Seltzer of Harvard Law School’s Berkman Center for Internet and Society argued in their joint op-ed in the Crimson last May, there is a danger that content owners like the RIAA “are forcing our librarians and administrators to be copyright police.”
Seltzer told the Sun universities ought to broaden how they attempt to define “undue burden.”
“By cooperating with subpoenas, the University becomes a less hospitable learning environment,” she said.
Cornell takes student privacy and the free flow of information on campus seriously, Mitrano said. It would never identify students by informal request, without subpoena. Cornell also holds that filtering content is not only counter to the advantages it enjoys as an internet provider with “passive conduit immunity” — it cannot be prosecuted for content found on computers it does not own — “It contravenes the university’s academic mission.”
She is mostly critical of students’ attempts to transfer their side of responsibilities on the university.
“Students should be, want to be, independent, yet wish for [the University’s] protection … Cornell has to go before courts all the time; if we got a reputation for obstructing justice, it would impede on our operations. So, essentially, the students are placing themselves under this liability. What concerns me is that they are not trying to challenge [the federal laws that enable] this situation.”
Cornell’s Office of the JA faced 292 copyright offense referrals in 2006, the great majority of which were infringements on the internet, up from only 63 referrals the year before. The Office internally reflects the sharply increasing nationwide volume of legal action from content owners — corporations who own intellectual property like songs and visual media.
Although part of this increase might be explained as the termination of Cornell’s Napster contract, granting Cornellians a free legal route to music, the RIAA alone sent out 1,200 pre-litigation notices last spring, 19 of which arrived in Cornell mailboxes.
Cornell finds itself struggling to define the terms of new copyright infringement debates as internet file sharing and downloads become inextricably tied to the contentious concept of intellectual property. Copyright law, commonly associated with a sea of arcane technical knowledge, and subsequent subpoenas face increasing scrutiny in university debates around the country.
Mitrano recognizes the obscurity surrounding much of the issue.
“We are trying to shift away from a punitive to a more educational approach,” she explained. Mitrano designed the Copyright course, mandatory for recipients of infringement notices.
Still, Seltzer and Nesson argued for increased engagement on the part of universities as student-content-owner duels continue. Their opinion piece considered it the moral obligation of an institution of higher learning to defend students against counter-academic legal proceedings.
The piece stated, “…we should be assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us. We should be deploying our clinical legal student training programs to defend our targeted students. We should be lobbying Congress for a rollback of the draconian copyright law that the copyright industry has forced upon us.”
Is fear of content user punitive action interrupting, more than the latest Jay-Z download, actual Cornellians’ day-to-day academic pursuits?
Wendy Viola ’09 expressed disappointment at one aspect of Cornell’s solution of offering Ruckus.com as the single university-endorsed “legal alternative” to programs like DC++. After trying unsuccessfully to download a couple songs she needed for class from Ruckus, she returned to old sources.
“I was thinking that it would be very ironic and exceedingly frustrating if I were to get in trouble for downloading two songs my professor asked for class,” she said.