Peer-to-Peer and the Higher Ed Act

As Doug Lederman reported, the Higher Education Act is up for renewal. Already the Department of Education, associations, colleges and universities, and legislators are teeing up pet concepts and ideas. Loan rules, accreditation and competency policies, completion rates and the perennial questions over how to legislate cost/price challenges are the headline issues. 

So … the peer-to-peer file sharing provisions that made their inaugural appearance in the last iteration of the Act in 2008 are perhaps not among the most significant issues but it is curious that copyright specialists in higher education or its associations have not put it on their radar.  Some of my friends and colleagues in D.C. will probably wish I would zip it, because to reopen the discussion has some Pandora’s box potential.  But I live in the boondocks, not Dupont Circle, and trust my friendship will survive this test to ask: Anyone want to talk about the issue? 

For the uninformed, the issue can be summed up as the requirements with which colleges and universities that receive federal funds (financial aid or grants) must comply: a technological “solution” to “peer-to-peer” copyright infringement; the offering of legal alternatives and annual assessment of “solutions.”  Two of the four options under the technological “solutions” were antiquated by the time the legislation went into affect in 2010: “identification of high bandwidth users” and “packet-shaping” because of the many legal uses to which bandwidth goes: for example, streaming video.  The least and most restrictive “solutions” remain in effect: devices that filter by content and acting on DMCA notices. 

Is there anything inherently wrong with these two practical approaches?  For a research institution such as the one for which I work, culture, tradition and policy mitigate against content filtering, so we rely on the least restrictive alternative, which we initiated long before, in 2002, we were required to do so.  For a mission driven institution, content filtering, so long as it is precise and not overbroad, might be an appropriate step to take.  In short, my answer is no.

Is there something wrong with the fact of these requirements?  Yes!  What’s wrong?  In my opinion, they could not survive a rational basis scrutiny of the equal protection clause: Higher education networks are required to comply, but not any other “sector” of U.S. society nor commercial service providers.  That doesn’t make sense.  Higher education networks comprise a small fraction of the infringement that occurs on line globally and even within the United States, and yet we share an unfair and disproportionate responsibility (read: costs) to do the bidding of the content industry.   Moreover, peer-to-peer is hardly the technology used for infringement these days, but sites that combine copyright and trademark infringement.

Please know, I understand that in the scope of things, education leaders have bigger fish to fry than this issue. And inside-the-beltway thinking errs on the side of not wanting to upset the apple cart when it comes to any aspect of copyright law.  But by nature I bristle at unfairness, especially when directed at higher education.  Anyone else want to bring this issue back on the table?  It is time to end the discrimination against higher education, not to mention the negative public impression that these requirements create.  Get these provisions out of the next version of the Higher Education Act!