Showdown Over File Sharing

College officials have been aware and wary of growing Congressional interest in student file sharing of music and videos -- a practice many students consider normal and that the entertainment industry views as tantamount to theft. Colleges, generally feeling caught in the middle, have worried that Congress might try to impose an unworkable solution.

And that's what they fear could happen this week -- with the Senate majority leader (needless to say someone with whom colleges do not want to pick a fight) largely responsible. Sen. Harry Reid of Nevada announced his plan to prevent "campus based digital theft" through a series of requirements that he is expected to try to attach to the reauthorization of the Higher Education Act, when the Senate takes up that legislation, most likely in the next day or so. The Reid plan would require colleges to:

• Report annually to the U.S. Education Department on policies related to illegal downloading.
• Review their procedures to be sure that they are effective.
• "Provide evidence" to the Education Department that they have "developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property."

The measure would also require the education secretary to annually identify the 25 colleges and universities that have in the previous year received the most notices of copyright violations using institutional technology networks.

While those provisions are in the amendment Senator Reid unveiled last week, they could easily change today or tomorrow, and lobbyists following the situation described it as fluid.

Reporting requirements are already in the reauthorization bill, so they aren't the reason colleges are upset. Mark Luker, vice president of Educause, said that the measure on "technology based" systems would force colleges to buy software or hardware to theoretically block file sharing when that technology hasn't yet become effective. Some experts also question whether this technology in its current form would end up blocking file-sharing that does not violate anyone's copyright and that supports teaching and research.

"These technologies do not work well," Luker said. "They are really not ready for prime time and colleges should not be forced to install them."

Luker also objected to the way the legislation makes colleges uniquely responsible for the problem when file sharing starts in middle school these days and doesn't end with college graduation. "Colleges have been working very hard on this issue," he said, trying to teach their students about copyright law, adding services that provide free or low cost music downloads, and adding new rules all the time to discourage illegal file sharing. The University of Kansas, for example, has just toughened punishments for those who use campus networks in violation of downloading bans.

It is unfair for Congress to expect colleges to prevent all file sharing while ignoring its prevalence elsewhere, Luker said. "Colleges get a new cohort of freshmen every year, so they can come in with these habits well established with their prior life," he said.

Another problem with the Reid proposal, Luker said, is that the measure of copyright notice violations will end up implying that large institutions (which receive more of such notices by virtue of the size of their student bodies) ignore copyright law, when they are just large. Further, such notices are not necessarily legal findings, but are the opinions of the entertainment industry, he said.

"This is asking the education secretary to take actions based on information provided by the entertainment industry, and that's inappropriate for the government and the entertainment industry," Luker said.

Educause and other groups have started a lobbying campaign against the measure, stressing both their substantive opposition and complaints that there were never hearings on the proposal.

At the same time, the entertainment industry is lobbying for the amendment -- and arguing that colleges need more of a prod from the government on the issue. Mitch Bainwol, chairman and CEO of the Recording Industry Association of America, on Friday sent a letter to Senator Reid praising his proposal.

In his letter, Bainwol said that more than half of college students engage in illegal file sharing or downloading. While he acknowledged "some progress" by colleges in recent years, he said that "much more can be done." Bainwol noted that many campus networks are created with taxpayer funds and are intended for "academic and research purposes," but end up, he said, giving students "a means to steal."

The letter repeatedly made the case that colleges are directly responsible for the problem, which the letter maintained is hurting the economy. Wrote Bainwol: "Colleges have provided an ideal environment for online theft to thrive, producing a generation of citizens lacking an appreciation for the true value of copyrighted works."