© 2008 Kent Wada. The text of this article is licensed under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 Unported License (http://creativecommons.org/licenses/by-nc-sa/3.0/).
EDUCAUSE Review, vol. 43, no. 2 (March/April 2008)
Get Me Out of the Middle!
“Get me out of the middle!” That may as well have been the title of Steven McDonald’s talk at the NACUA/EDUCAUSE “Law and Electrons” workshop in November 2007 (the actual subtitle was “A Plague on Both Your Houses”). Steve was on a panel with Cary Sherman, president of the Recording Industry Association of America (RIAA), and though he expressed some sympathy for the entertainment industry and for students, Steve just wanted the two sides to deal directly with one another. Steve felt that his institution, whether helping to enforce someone else’s copyright or helping to defend someone else’s lawsuit, was in the middle of the illegal file-sharing wars, and he wanted it to be able to get out.
Doubtless, many of us in higher education have felt the same way at one time or another. We voluntarily spend countless hours developing educational strategies while sharpening policies, practices, and technologies to curb illegal file sharing. We evaluate technological solutions, determine legal risk, weigh options for handling early-settlement-offer letters from the RIAA, protect student privacy, revisit records retention, and offer students aid. College and university officials testify before congressional subcommittees, reply to detailed congressional surveys, and articulate, in many forums, their positions. Institutions have developed innovative solutions, such as the University of Michigan’s “Be Aware You’re Uploading” program (http://www.bayu.umich.edu/). These activities have required sustained focus from student life, legal affairs, IT, and governmental relations areas, not to mention administrators, faculty, and executives.
Yet it never seems to be enough: new challenges—legal, legislative, social, judicial, and technological—keep coming.
Centripetal Forces
The entertainment industry has met the irresistible force of the Internet. This presents a great opportunity, but not necessarily an enviable position, for the industry: consider what television did to radio or what Expedia did to travel agencies. In each case, a disruptive technology swept across an industry like a tsunami, leaving the landscape forever changed. In each case, there was a tremendous benefit twinned with equally tremendous challenges for the existing industry as it struggled to accept, understand, and adapt to a new set of rules.
The digital entertainment space is full of interesting experimental models. Amazon.com offers music in MP3 format—free of digital rights management and thus untethered from the iPod—often for less than what iTunes charges. Nokia is bundling music access with cell phones, and Universal Music Group is looking to extend this model to other devices. iTunes, the gold standard for legal music acquisition, is suddenly a dominant force in digital movie rentals, adding alternatives to those already offered by Amazon.com and Netflix, among others. NBC, CBS, and ABC make available streaming video of popular TV shows from their websites. There is a sense we could be at a tipping point, but these are still largely experiments, often with various practical shortcomings. Developing a new business model as the horses are galloping out of the barn is easier said than done. And so the industry is investing tremendous effort to preserve the old business models even as it works to figure out new ones.
Students are being sued by the RIAA. The early-settlement offers from the RIAA work outside of the Digital Millennium Copyright Act (DMCA), the legal framework for online copyright infringement, posing policy conflicts that undermine the educational efforts of colleges and universities. Educational campaigns by the industry articulate an extremely restrictive interpretation of copyright, an interpretation that never mentions any balancing concepts such as fair use.1 Advocacy by the Motion Picture Association of America (MPAA) is resulting in proposed legislation—again, effectively trying to amend copyright law without actually doing so—that is equally restrictive, focusing only on the specific issues of illegal file sharing using P2P rather than on the larger debate of intellectual property in cyberspace. Among other things, this legislation could increase reporting, could mandate across-the-board solutions, and could link those solutions to federal funding.
A confluence of related activities is threatening to turn into a perfect storm. Major commercial ISPs are voluntarily deploying, or considering the deployment of, anti-infringement and P2P-capping technologies.2 Legislation supported by the U.S. Department of Justice would significantly raise penalties for copyright infringement, would increase staff devoted to pursuing infringement, and would blur the line between criminal and civil cases. And so on.
Intellectual property is basic to higher education. Without care, colleges and universities will be letting others define the new order for them.
Centrifugal Forces
“Why can’t we present a united front like the entertainment industry?” was a question that arose repeatedly at the 2007 EDUCAUSE Annual Conference. Of course, higher education consists of thousands of individual and highly individualistic institutions. Still, there are many things that those of us in higher education should strive for.
We need to treat illegal file sharing first as a student life issue. Technical and legal issues often dominate our attention. But it is the student life aspect that frames our goals and drives our activities. Though we do not stand alone in helping shape members of society who are ethical and informed, it is part of who we are. Educational efforts and teachable moments are key. Sanctions can be educational moments too, if treated in the context of all student conduct violations—that is, when copyright violations are seen as violations of student conduct codes (a student life issue) instead of as violations of computer acceptable-use policies (an IT issue). For even assuming that we can stop specific, inappropriate behavior, we are all collectively poorer if the underlying pattern of behavior continues and is not seen as part of the bigger picture.
We need to respect intellectual property even as we might deplore specific tactics used to protect it. Illegal file sharing is only one aspect of the larger national and international debate over copyright in cyberspace. We are tremendous creators and consumers of intellectual property. If we expect others to respect our intellectual property, we must respect the intellectual property of others. Central to this respect is, again, our educational role in shaping our students as ethical members of society. That said, we need to stand up and argue vigorously for our view of how intellectual property should be used—and protected.
Hard data is key for higher education to be heard loud and clear. We have data from research such as Illinois State University’s Digital Citizen Project (http://www.digitalcitizen.ilstu.edu/), Kenneth C. Green’s Campus Computing Project (http://www.campuscomputing.net/), and the Brandeis University survey on DMCA practices,3 but these disparate sources need to be aggregated, put into a coherent whole, and publicized. Other independent studies, such as the Canadian government’s report that P2P sharing actually increases CD sales,4 also need to be part of the picture. Having our own data can mitigate errors in others’ studies, such as the error recently announced by the MPAA, which noted that 15 percent, not 44 percent (as it had previously claimed), of the movie industry’s domestic losses come from illegal downloading of movies by college and university students. But having hard data is only one way of informing the debate, and the task of stating our case cannot be left to just a few institutions or to those that make the news. Not all institutions have government relations units, but all of us can work through associations such as EDUCAUSE.
We also need to do our part to tone down the rhetoric, since mere diction can limit meaningful dialogue. The debate over copyright and intellectual property in cyberspace is full of hyperbolic rhetoric; for example, what began as “illegal file sharing” turned into “digital theft,” which morphed into “digital piracy,” which recently became “illegal file trafficking.” Our statements should be carefully considered.
We need to be careful how we articulate our positions to our internal community. In our zeal to educate our students about illegal file sharing, have we inadvertently reduced our message to imply that “P2P = bad”? Copyright infringement is illegal, but P2P and file sharing have legitimate applications today and could have vastly expanded uses as we race to build out the cyberinfrastructure we need for research.
Finally, we need to sharpen how we articulate our values externally. Privacy, freedom of inquiry, and academic freedom are all important values to the academy, but they have sometimes been used as conceptual bludgeons against anti-infringement technologies that we believe are encroaching on these values. Instead, we must be more nuanced in our approach. For example, we need to distinguish between the goal of protecting privacy and the methods we use to protect that privacy (the “what” versus the “how”). We all routinely monitor network content in an automated, machine-inspected manner for the stability, reliability, and integrity of our infrastructure; consider security tools such as antivirus or antispam software. But we must be sure that the monitoring of the network does not cross the threshold into surveillance—that is, does not become the monitoring of behavior.
In the Middle
Sometimes, on bad days, it’s hard not to want to get “out of the middle.” Our students can appear to have a Teflon coating against our education, and the entertainment industry can seem to be deaf to our arguments. But history shows that there is usually light at the end of the tunnel. With any disruptive technology, there is, well, disruption until people figure out new models, processes, and paths to wealth creation. As for the “old” industries, strategic inflection points do not necessarily kill them: radio is thriving in satellite and high-definition versions; and after a taste of booking their own airplane flights, many people consider a good travel agent to be an old-fashioned luxury.
One example of the process of working through the disruption is a joint project between UCLA and the MPAA, who are cosponsoring a field study project at the Anderson School of Management. Six students will be looking into new business models, delivery models, and consumer models for digital entertainment—essentially asking, what would appeal to consumers? This draws on what colleges and universities do best: research and education.
File sharing serves as a tuning fork for an entirely new orchestra of digital communication, interaction, and social expectation. We in higher education must provide a clear, calm, ringing voice in defining the terms of the new world when we believe our goals and values are important not only to us but to society. We may want to get out of the middle, but we cannot afford not to be there.
1. For example, see http://campusdownloading.org/.
2. James S. Granelli, “Copyright: AT&T to Target Pirated Content,” Los Angeles Times, June 13, 2007, http://pqasb.pqarchiver.com/latimes/access/1287137611.html?dids=1287137611:1287137611& FMT=ABS&FMTS=ABS:FT; “How Comcast Blocks Your Internet Traffic,” Machinist, October 19, 2007, http://machinist.salon.com/blog/2007/10/19/comcast/index.html.
3. Eric Bangeman, “Colleges Serious about Dealing with Copyright, P2P Issues,” Ars Technica, December 5, 2007, http://arstechnica.com/news.ars/post/20071205-colleges-serious-about-dealing-with-copyright-p2p-issues.html.
4. The authors stated: “Our results suggest that . . . downloading the equivalent of approximately one CD increases purchasing by about half of a CD.” Birgitte Andersen and Marion Frenz, The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study for Industry Canada (October 30, 2007), http://strategis.ic.gc.ca/epic/site/ippd-dppi.nsf/en/h_ip01456e.html.