Larisa Mann

November 29, 2007

Glory be, the big copyright owners have found yet another way to threaten students’ access to education–this time by going for the biggest support of higher education–federal funding.

On Nov 22 the House Education and Labor Committee approved H.R. 4137, the College Opportunity and Affordability Act (COAA). The name sounds like something everyone can support–but the devil is truly in the details.

Page 411 of this 747-page bill is “Section 494(A): CAMPUS-BASED DIGITAL THEFT PREVENTION” wherein the bill’s meaning takes a serious detour from its title. To prevent college students from illegally accessing copyrighted material, the section says all schools shall (when you see the word “shall” in a law, it’s a requirement, not a suggestion):

1) Have “a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property” and 2) Have “a plan to explore technology based deterrents to prevent such illegal activity.”

The craziest thing about this is that noncompliant schools would lose all their federal funding, for all their students. No more Pell Grants. No more federal financial aid. No more student loans. This is not just draconian punishment for students who break the law, this punishes all students at that institution even if they did nothing!

Beyond that, both requirements actually work against the point of the bill itself–implementation would likely raise school fees.

If a school requires students to sign up with an “alternative system,” this means (for now) a for-profit company. Who pays for the subscription? And if a school has to use filtering software, who’s going to pay for that? If schools have to prove compliance, they will have to make it mandatory–folding it into school fees is the simplest way. How does that contribute to “Affordability?”

There’s no good reason for fee hikes because the requirements could never solve the “problem.” Let’s back up: what’s the problem and why are schools being forced to solve it?

If the problem is illegal (and there is legal) downloading and uploading and its effect on the industry, why are colleges being required to stop it? The RIAA and the MPAA often state that college networks are major sites of infringement–but their own numbers don’t back that up. The MPAA’s own estimation is that 18.4 percent of copyright infringers overall are college students, who are responsible for 44 percent of lost revenue from copyright infringement.

Calculating “lost revenue” is tricky–how to calculate what would have been paid if someone hadn’t downloaded a song? What if it made them buy an album, or merchandise? What if downloading was easier than ripping a paid-for CD, LP or cassette?

But sticking with the MPAA’s semi-bogus numbers, educational technology nonprofit Educause points out that “since less than 20 percent of college students live on campus and use the residence hall networks, this means that less than 4 percent of the infringers are using campus networks, and they are responsible for less than 9 percent of the losses. Over 91 percent of the claimed losses are on commercial networks.” Get that: 4 out of every 100 infringers (even trusting the industry assessment of infringement, which usually is not too carefully defined) are on college networks. And yet this is so important that Congress will subvert federal education funding?

Further evidence of this entertainment industry power-grab is described in a letter against Section 494(A) signed by the President of Stanford University, the Chancellor of the University System of Maryland, the Vice President of Yale and the President of Penn State, which describes how representatives of the entertainment industry would be the ones to provide the data identifying which schools are “violators.” Punishment would be based on these numbers, which would put the Secretary of Education basically under the direction of the entertainment industry! (PDF)

Equally cheesy is the requirement that schools endorse a particular music service. Since they would have to prove compliance in order to keep federal funding, what would be easiest is to fold the cost of membership to something like Napster or Ruckus into everyone’s school fees. All these companies are limited: they may not have the music you want, or their files (like Napster’s) are crippled with digital rights management software (DRM) so the files can’t by played on iPods.

So you might be paying for a service that isn’t guaranteed to have music you want or files you can even play. In fact, Educause points out that many universities have already considered working with existing companies only to reconsider based on complaints from their students. If the industry can’t come up with a music service students want, why should Congress require state universities to subsidize the current failures?

And if they do use filtering software to monitor activity on college networks, how are those filters going to separate out all the legal activity from the illegal activity? College networks are obviously the site of many educational uses of all kinds of files, how will the filters know when the use is educational? How will students they allow access to public domain works? And what does filtering software–essentially a way to tracking what you do online–mean for students’ privacy rights? These issues are too important to be packed into a few lines in an educational funding bill.

This embarrassing example of lawmaking corrupted by corporate interest is sponsored by the Democratic Representatives George Miller (CA), and Ruben Hinojosa (TX), reviving a version Democrat Harry Reid put forth this summer. That was beat back in the Senate, only to pop up, zombie-like, in mid-November at the last minute: introduced to the House Committee on the Friday of a 3-day weekend to be discussed the following Wednesday. Not a lot of time for people who care about this stuff to organize and get the word out to their representatives!

As Public Knowledge, a DC-based organization working to further the public interest in access to knowledge, points out: “Democrats promised more transparent government and less kowtowing to special interests like the content industries. Actions like this indicate that it may be time to refresh their memories.”

We can’t let higher education become the bullyboys of the entertainment industry–education has to come first. If the federal government won’t stand up for education on its own, we have to remind them?

You can take action by contacting your Senators and representatives.

Educause has a handy list of issues, links, and an action page here.

The Electronic Frontier Foundation has an action sheet here.

Public Knowledge also has an action page.

Larisa Mann writes about technology, media and law for WireTap, studies jurisprudence and social policy at U.C. Berkeley and DJs under the name Ripley.