May 6

Mysterious Multiplication of Copyright Complaints

It’d be hard to argue that Indiana University doesn’t take illegal downloading seriously. As noted on its “Are You Legal” Web site, the university imposes a $50 fine for the first notice university officials receive from entertainment companies about a student’s alleged improper sharing of copyrighted music or video, and cuts off the student’s access to the Indiana network if he or she fails a 10-question quiz within 24 hours. The penalties ramp up from there.

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But Indiana officials are now discussing whether they should continue to respond to complaints from the recording industry with the same aggressiveness. It’s not that university leaders have suddenly decided that illegal behavior isn’t wrong; instead, they are beginning to question the legitimacy of the notices the Recording Industry Association of America sends accusing network users of illegally sharing music.

That’s because, like many colleges and universities, officials at Indiana have seen an eye-popping increase in the number of complaints they’ve received at a time when campus administrators say they have not seen any sort of rise in traffic that would suggest more piracy. Instead, college technology experts — lacking an explanation from industry officials for the upturn — suspect that the recording industry has altered the standards it uses to allege illegal behavior, targeting not only instances in which computer users have actively shared music illegally, but instances in which they have stored downloaded music in a folder visible to other users, opening the way to a potential violation.

That has officials at Indiana and elsewhere reconsidering how seriously they take the threats the recording industry aims at their students, which has been part of a continuing disagreement between the entertainment industries and higher education leaders over whether the recording and movie industries are disproportionately singling out college students (and their host institutions) for the broader Internet piracy problem.

“We’ve been handling the notices as allegations of actual infringement,” said Mark S. Bruhn, chief IT security and policy officer in Indiana’s Information Technology Policy Office. “But if they are not allegations of illegal behavior, but of possible future infringement, we may wind up discarding them.”

As Indiana and other institutions reported significant upturns in the number of complaints they were fielding, officials of the RIAA have been relatively silent on the matter, letting prepared statements that say little speak for them, thereby encouraging speculation like Bruhn’s.

In an interview late Monday, Cary Sherman, president of the RIAA, specifically rebutted the idea that the industry had altered its criteria for going after illegal downloaders. Sherman attributed the “phenomenal jump” in the number of complaints to a “major change in the software and hardware” its major vendor uses to detect online infringement. Nothing about the industry’s approach changed, Sherman said: “It’s the same procedures, the same standards, the same list of copyrighted works that we’re using.” The only changes, he said, were a more efficient software and an increased number of servers powering the industry’s searching for possible shared material.

“The Internet is a huge place, and there are millions of people connected to it,” he said. “The amount of resources you put into sending out requests for specific files makes a difference; the more requests you make, the more you’re going to find.”

He added: “We don’t think there’s any more infringement going on. We just think there’s more detection of infringement.”

In the first 20 days of April, Indiana received a total of 70 complaints directing the institution to take down illegally downloaded content. It received 70 notices alone on April 21. April 22 brought 97. The next few weekdays delivered 44, 91, 83, 72 and 58. Other universities, from major ones like the University of Michigan to smaller institutions such as Whitworth University, are also reporting significant increases in notices from recording companies. Most institutions in the Council on Institutional Cooperation, which includes the Big Ten universities and the University of Chicago, reported big rises in a recent survey, according to Bruhn.

He said he and other officials at Indiana have not seen a concomitant increase in actual network traffic, and that the campus is actually emptying out as students finish their final exams and head home. That led Indiana IT administrators to seek an explanation for the dramatic upturn from contractors that the recording companies use to monitor possible illegal file sharing, and Bruhn said that one of the contractors had said that because one student had one of a record company’s songs available to other users in his or her public index of songs, the university would be receiving a DMCA notice.

Entertainment industry lawyers have long maintained — and argued in court — that it is a copyright infringement to “make available” illegally downloaded music or movies, even if the material is not actually shared. That has been among the battleground issues in court cases over peer to peer file sharing, and the terrain remains disputed, even though two of three relatively recent court rulings (including last month’s denial of a summary judgment in the closely watched Atlantic v. Howell case) have rejected the recording industry’s argument that making content available for possible download is just as much copyright infringement as actual dissemination of the material.

That legal fight is among the factors that has Bruhn and other college officials wondering if the recording industry is altering its approach to try to buttress its political and legal standing, especially given the fact that the statistics entertainment officials have leaned on to persuade Congress to target higher education for a crackdown on downloading were acknowledged early this year to be flawed.

Could the industry, they wonder, be ramping up its allegations against college students now to try to reinforce its case to the courts and to Congress that colleges are, in fact, a hotbed of illegal file sharing activity?

Sherman scoffed at that notion. “We have been asking the contractor for years to increase the computing power of its effort, and to search more to detect infringement,” he said Monday. “We’ve had a standing request to maximize efficiency for what they do for us.... We didn’t even know they were putting a new system online.”

Despite the timing, there is “no connection whatsoever” between the upturn and either the court cases suggesting that actual infringement needs to occur for a finding of copyright violation or the perceived need for new data to show Congress that illegal file sharing is rampant on campuses, Sherman said.

“We would have preferred this uptick five years ago,” he said.

— Doug Lederman

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