Under threat of legal action — and a $30,000 fine — universities have become extended arms of publishing companies and the Recording Industry Association of America, taking up the responsibility of ferreting out and penalizing instances of copyright infringement among students and professors. Some university administrators complain that these groups have unfairly targeted universities to make an example of them, but RIAA President Cary Sherman ’68 has said the approach is valid given that copyright infringement is especially prevalent at universities.
Perhaps because of its name recognition and size, Cornell has become a key battleground in the digital guerrilla warfare. 12 students at Cornell were sued by the RIAA for illegally downloading songs this semester. Most of them are settling for around $3,000 in fines to avoid court appearances and the risk of adding $250,000 or more to their student loans. The number of students referred by watchdog organizations has skyrocketed in recent years. Students are not the only target; the threat of fines and legal action has struck fear — or defiant apathy — in the hearts of professors and T.A.s. Between some professors and their students there exists a hallowed pact, established with a grin and whispered appeal: what I’m doing might be illegal, but let’s not turn me in.
For an individual student being threatened with punitive action by the RIAA or the university administration for failing to cease illegal downloading, the solution is simple: just stop downloading onto campus computers or personal computers connected to the university’s network. Or to avoid the issue altogether, move off campus. While the RIAA will go after universities, it has not taken on giants like Time Warner Cable or AT&T, even though piracy is just as prevalent on their servers. For educators, the problem is more stubborn. The task of educating students involves distributing texts, and teaching takes place on campus.
The University strives to educate instructors about copyright law, providing a checklist that suggests — but does not securely establish — what constitutes “fair use” and what might constitute copyright infringement. Some of this information is commonsensical and justified: one should not reproduce publications for commercial gain; the reproduction should not include more than what is necessary for educational use; and the distribution should have no substantial effect on the market for the work. But some of the guidelines are obscure or impractical. For instance, the suggestion that a reproduction is more likely to fall under fair use if it is “transformative or productive (changing the work to serve a new purpose)”: would it help to ask students to make Origami out of an article once they have read it? Similarly odd is the guideline that what is reproduced should not be central to the work as a whole. Given so many vague instructions, most instructors fall back on the most concrete among them: the “10 percent rule,” which states that only 10 percent of a work should be reproduced. But even this is ambiguous. A journal article might constitute a fifth of one issue, but if a volume comprises three issues, what constitutes the “work”? The more conscientious among us seek further advice, but generally instructors will go ahead and reproduce the work, hoping not to be caught.
An entirely separate issue from the ambiguity of the rules is the undue constraints they impose on the educational experience. Publishers and the RIAA are fighting a losing, person-by-person battle. It is understandable that these corporations are distressed by the loss of profit that the Internet, file-sharing programs and PDFs have caused; some criticize such companies for being money-grubbing, but a corporation does not run on altruism. The problem calls for a paradigm shift rather than an extended, un-winnable enforcement battle; loss of profits can be attributed as much to companies’ failure to provide non-burdensome alternatives as it can to piracy. Record companies, in making deals with services like iTunes, have adapted more quickly than print publishers. For instructors, often the alternative to infringement is calling the publisher only to discover the exorbitant cost of reproducing the work legally for distribution to his or her students.
This year, The New York Times suspended its experiment with online subscription service, reinstituting free access to all newspaper content and its substantial archives (the newspaper will instead rely on online advertising revenue). Publishers need to make a similar bold move. The problem, I think, lies in viewing the enterprise of book and article publishing as a transaction between publisher and individual reader. Publishers have begun to target institutions, but universities do not have the resources to serve as enforcers of copyright law on an individual-by-individual basis. Publishers should recognize that in the university setting print works belong to a community of readers; in addition to individual copies of books, publishers should sell licenses that allow university-internal reproduction of the works provided some reasonable limits are observed. This business model may or may not be feasible, but the solution certainly does not lie in having professors copy the irrelevant nine percent of a book.
Gabriel Arana is a graduate student in linguistics. He can be contacted at garana@cornellsun.com [1]. The Red Line appears Thursdays.
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[1] mailto:garana@cornellsun.com