March 1, 2007

Campus Downloading Crackdown

The music industry is ramping up its campaign against illegal file sharing by college students — and asking campus administrators to play a more central role in that process.

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Since late 2003, when entertainment companies began suing people for sharing large amounts of music (and eventually movies) over the Internet in violation of federal copyright law, the Recording Industry Association of America has filed about 1,000 of its 18,000 lawsuits against students. In a new strategy it announced Wednesday, the association said it will send 400 “pre-litigation” letters each month (a total of 5,000 a year) offering students the chance to settle at a “substantially discounted” rate what they owe for downloading music illegally and to keep the association from filing lawsuits that would appear on their public record.

The RIAA’s letters will go to administrators at colleges and universities to deliver the notices to the appropriate students, and the first batch of 400 letters went out Wednesday to officials at 13 universities, mostly large public ones (see list at bottom). Students who don’t respond within 20 days will face lawsuits.

Mitch Bainwol and Cary H. Sherman, the RIAA’s chairman and president, respectively, said that despite the steps higher education associations and officials at many individual colleges have made to try to limit illegal peer-to-peer file sharing by students, by educating students about the illegality of the practice and promoting legal alternatives to it, “massive theft” continues, as Sherman put it.

“We clearly are seeing continuing widespread piracy, theft, on college campuses,” Bainwol said. In response, he said, it was only appropriate that the recording industry engage in a “substantial ratcheting up, a refocusing on the college community” as a major source of the illegal downloading problem.

While students are the ultimate targets, college officials have a responsibility and a role to play, too, Sherman said. “We take this opportunity to once again ask schools to be proactive to step up and accept responsibility for the activities of students on their networks. It’s not a legal responsibility, but a moral responsibility, as educators, as leaders transmitting values to their students.”

The file sharing issue has been a thorny one for many college and university administrators, who see themselves as having a responsibility to limit an illegal activity taking place on their campuses (an activity that can also clog their networks), yet aren’t thrilled about having to play technology cop to their students on the entertainment industry’s behalf.

The RIAA’s (and the Motion Picture Academy of America’s) previous campaign of “John Doe” lawsuits against individual students have put campus officials on the spot, as the lawsuits have been accompanied by subpoenas ordering the colleges and universities to put names to the students identified only by their IP addresses. Campuses have typically complied, although some have complained that academe is being singled out unreasonably, given that many more Americans download music and movie files illegally through their commercial Internet providers than students do through their campus networks.

Under the recording industry’s new line of attack — which Kenneth C. Green, founding director of the Campus Computing Project, called a “spring offensive” — the companies are asking college administrators to pass the settlement offers on to their students, voluntarily, and to encourage the students to then file for the settlements via a Web site within 20 days. The RIAA declined to say how much students might save by settling rather than facing court-imposed penalties — which news reports have pegged at $3,000 to $4,000 on average — but its officials described the savings as substantial.

The American Council on Education, which at the request of the RIAA sent an e-mail to about 2,000 college presidents Wednesday informing them of the new campaign and distributing an RIAA letter explaining it, did not take a stand on whether colleges should encourage students to take the deal. “We have not had time to fully evaluate this idea and cannot, at present, formally advise you on this matter, but it may provide potential benefits to students facing lawsuits as well as to the RIAA,” David Ward, the council’s president, said in his accompanying note. “In the event that your institution is contacted, we encourage you to review the proposal with legal counsel and determine whether this approach makes sense for your campus.”

Officials at the colleges on the receiving end of the RIAA’s first batch of letters acknowledged that the campaign raised potentially difficult issues for them. “We are being asked to deliver their message straight to students,” said Sally Linder, acting senior director of media relations at Ohio University, which received 50 of the settlement letters, more than any other institution. She said the university would be weighing its obligations under the Digital Millennium Copyright Act, the federal law on which the entertainment industry’s lawsuits are based, but also under federal privacy laws. “We will be looking at this with a careful legal eye,” Linder said.

John F. Dubach, chief information officer at the University of Massachusetts at Amherst, which received notice of 37 students with alleged file sharing violations, acknowledged that his and other institutions “are a little bit more in the middle on this” than they have been under the recording industry’s previous approach, especially because they would be tracking down the students voluntarily rather than under the compulsion of a subpoena.

But he also noted that the RIAA would presumably file a lawsuit against any student with whom the university did not share the settlement offer, so “legally we’d be compelled” to get involved at that point, by providing the student’s name in response to the accompanying subpoena. “I’m not sure this makes us any more of an intermediary,” Dubach said. And besides, he added, “I’m not sure we’d be doing our students a favor by not passing the information on to them,” potentially saving them money.

Critics of the entertainment industry’s crackdown on file sharing, however, saw it differently, unsurprisingly. “The RIAA is essentially asking universities to help them make it easier and cheaper to shake down more students,” said Fred von Lohmann, senior intellectual property attorney at the Electronic Frontier Foundation. He described the recording industry’s latest effort as a desperate and flawed attempt to sustain an unsustainable business model, and discouraged institutions from cooperating in it. Universities, he said, “need to ask themselves which side of this historical moment they want to be on — on the side of the four major record labels, or on the side of their students.”

William E. (Brit) Kirwan, chancellor of the University System of Maryland and co-chairman of the Joint Committee of the Higher Education and Entertainment Communities Technology Task Force, a panel of college and industry officials on the file sharing issue, said it was wholly appropriate for colleges to work with the entertainment industry on limiting illegal downloading. “The thing that’s very troubling for us is that because of students using our technology, we have illegal activity on our campuses,” Kirwan said, and “a very real responsibility to try to address the problem.”

Kirwan also said colleges’ dependence on intellectual property gives them added responsibility. “It would be very hypocritical of us to argue for protection of intellectual property that is coming from our enterprise,” in the form of scholarship, “and look the other way when people are abusing property rights on our own campuses.

“The real challenge,” he said, “is finding a way to prevent the activity.”

The list of campuses and the number of letters they received:

• Arizona State University (23)
• Marshall University (20)
• North Carolina State University (37)
• North Dakota State University (20)
• Northern Illinois University (28)
• Ohio University (50)
• Syracuse University (37)
• University of Massachusetts at Amherst (37)
• University of Nebraska at Lincoln (36)
• University of South Florida (31)
• University of Southern California (20)
• University of Tennessee at Knoxville (28)
• University of Texas at Austin (33)

— Doug Lederman

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