This is the third in a three-part series analyzing the Higher Education Opportunity Act that was passed in August.
President George Bush signed the Higher Education Opportunity Act into law this past August, ushering in a series of reforms that were said to help pave the way for more students to be able to attend college. Aside from its attempt to make higher education more accessible, the act contains controversial provisions that represent the entertainment industry’s ongoing pursuit to curb illegal file-sharing on college campuses nation-wide.
Tracy Mitrano law ’95, director of information technology policy and computer policy and law programs for the Office of Information Technologies, called the provision “ineffective” and asserted that it “doesn’t change anything about copyright law.”
However, the mounting pressure to enforce copyright law on college campuses is a contentious issue that has left Mitrano and other University information officers across the country frustrated and confused.
For years, college students have been the brunt of the entertainment industry’s campaign against piracy.
“All the research we’ve seen indicates college kids as the most prolific illegal downloaders,” Cary Sherman ’68, president of the Recording Industry Association of America, told The Sun in February.
However, some believe that colleges are unfairly being targeted by the entertainment industry. In January, the Motion Picture Association of America disclosed that they had overestimated the number of college-age individuals held accountable for the illegal file sharing. While the MPAA had claimed in 2005 that the specified demographic could be held accountable for 44 percent of illegal file sharing, they retracted the statistic announcing only 15 percent of illegally shared material was attributed to college-age individuals.
Despite disputable figures regarding file-sharing amongst the college-age demographic, the entertainment industry has exerted lobbying power in Congress for years.
In July 2007, Sen. Harry Reid (D-NV) proposed an amendment to the Higher Education Act of 1965. The provision, written by the entertainment industry, would require the “top 25” institutions that receive the greatest number of Digital Millennium Copyright Notices to install technological filtering systems on their Internet service providers. The amendment was met with great indignation on behalf of students and administrators in addition to those debating the amendment in the Senate, and Reid was forced to rescind it.
“In my experience I have never seen such a vibrant grass roots response in such a direct citizen fashion, writing to Reid, objecting to the unprecedented act,” said Mitrano.
The Joint Committee of the Higher Education and Entertainment Communities Technology Task Force — a subsidiary of the non-profit organization EDUCAUSE, devoted to “foster[ing] cooperation between the higher education and the entertainment communities” — issued a statement in response to the Reid Amendment, asserting that the act gave an inappropriate amount of power to the Federal government.
Though the amendment was withdrawn, similar provisions were included in the HEOA of 2008, which passed in August.
First, in accordance with the new bill, institutions must annually make students aware that the illegal distribution of copyrighted material makes students vulnerable to criminal and civil penalties. The disclosure must also clarify what steps the university or college is taking to punish those found guilty of such distribution.
Second, the act holds institutions responsible for reporting to the Secretary of Education so as to ensure that the institutions have “developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents.”
According to Mitrano, the Office of Information Technologies at Cornell spent $35,000 in the last academic year exclusively on the production costs associated with developing three programs that deter illegal file-sharing.
Third, the HEOA requires that institutions make an effort to offer alternatives to illegal file-sharing “to the extent practicable.” Currently, the University is partnered with Ruckus Networks, a digital entertainment service that offers free, legal and safe media to over 1,000 colleges nation-wide.
“Ruckus seems to get some usage,” said Dean of Students Kent Hubbell ’67. “But I’m not naïve enough to think that this is where it’s going.”
On Aug. 11, three days before Bush signed the act into law, the American Council on Education, EDUCAUSE, the National Association of State Universities and Land-Grant Colleges and the Association of American Universities issued a memo to all university chief information officers interpreting the HEOA’s provisions that specifically address illegal file sharing.
The memo recognized that “the law is unclear in certain respects, and ambiguities will need to be clarified through the regulatory process.”
According to Mitrano, it is up to the Department of Education to interpret the act and translate it into “implementable regulations.”
Mitrano commented on the ambiguity of the provisions, expressing concern that the bill does not take into account to complexities of the Internet in today’s digital world.
“The legislation fails to understand the internet,” she asserted. “The internet is not a proverbial series of tubes. It is not just a technology. It is a global community of users creating a new set of norms.”
Norma Schwab, associate University counsel, is responsible for digesting the over 1,000 page act and determining which amendments will require the University to take the “affirmative duty” to provide further information to students, faculty, the government and the public. According the Schwab, the act will not require Cornell to make any substantial changes to the way it currently functions.
“What it will require is a lot in the nature of providing information to students. There are going to be many more types of disclosure,” she said.
Despite the ambiguity of recent provisions, Mitrano told the Chronicle of Higher Education earlier this year that the relationship between institutions of higher education and the entertainment industry was weathering thin.
“We feel like we’ve been led down the garden path, and our interest in working in partnership and leading our mission as educators is now being used against us,” she said.
Some schools have begun to resist compliance with the entertainment industry, citing that the industry — the lobbying force behind the HEOA’s copyright provisions — is placing an undue burden on schools.
As it stands, the RIAA can trace illegal file-sharing activity to an IP address. The RIAA then proceeds to subpoena the university for the contact information of the alleged offender. Those who receive settlement letters can agree to pay a $3,000 settlement fee, or decide to face further litigation from the RIAA.
16 Cornell students were sued by the RIAA in May 2007 for refusing to pay a settlement fee.
In an effort to combat the RIAA’s pursuit against college campuses, many information officers have began taking controversial steps such as refusing to forward pre-litigation settlement letters from the RIAA.
Virginia Tech has begun erasing network-access records after a month to prevent having to trace IP addresses back to alleged pirates. At the University of Kansas, the office of information services has stopped forwarding pre-settlement letters to students, a controversial step that prevents students from settling cases before a lawsuit is filed.
According to Hubbell, the University will begin talks addressing how Cornell will continue to comply with digital copyright regulations.
“We might revisit the issue of whether or not we send settlement letters,” Hubbell said. “It’s not a simple ‘send it or not.’”
Ryan Lavin ’09, president of the Student Assembly, expressed frustration at the entertainment industry for singling out college students.
“I think it’s unfortunate that the entertainment industry is choosing college students to single out on this issue. Sure, it might be more convenient for them, but it is not the right thing to do,” Lavin said.
Mitrano acknowledged the broad scope of issues surrounding copyright.
“The issue is so much larger than Cornell, so much larger than higher education,” Mitrano recognized. “We need a global debate on the right policy on intellectual property in an international, information economy.”