This past Friday I had the honor of speaking to the EDUCAUSE/Cornell Institute for Computer Policy and Law at Cornell University in Ithaca, NY. The attendees were largely college and university chief technologists, with a smattering of university legal counsels. The name of my presentation (pdf) was “IT Perspectives Inside the Beltway,” but clearly there was only one Beltway issue foremost on the minds of the participants – an amendment to a higher education bill proposed by House Majority Leader Harry Reid. As Sherwin discusses here, that amendment conditioned federal funding on colleges and universities filtering their networks for infringing materials and compiling reports on those measures for the Secretary of Education. It also called for the Secretary to report on which 25 colleges and universities get the most written accusations of infringement from copyright holders – a “Hall of Shame” of sorts. The fingerprints of the Hollywood and the recording industry were all over the Reid amendment; consistent with their efforts to strengthen copyright law through any legislative means possible.
For the higher ed community, which has done its best to engage in dialogue with the entertainment industries and accommodate their wishes as much as their resources and educational mission will allow, this amendment went too far. Last week, with just days before a vote, higher ed fired up its grass roots capacity and forced Senator Reid to back down. He replaced his amendment with a more benign one that simply instructed higher ed institutions to advise their students not to commit copyright infringement and inform them about what action they're taking to prevent “unauthorized distribution of copyrighted material” through campus networks. Never admitting defeat, the MPAA called the Senate vote a “major step” to combat piracy on campus.
Despite its swift victory, this close call has the higher ed community spooked and talking appeasement, as the battle is likely to resume when the Senate bill comes to the House of Representatives. Never mind that the industries' claims about the pervasiveness of illegal P2P activity among college students falls apart under even the slightest scrutiny. For example, as demonstrated by Institute speaker Kenneth Green of the Campus Computing Project, the recording industry's own number indicate that college students accounted for just 4% of all the P2P infringement lawsuits in 2004-2005. Facts don't matter to an industry which consistently overstates the cost of online infringement, ignores empirical evidence of the benefits of downloading, and which refuses to reveal the data on which their “evidence” is based.
I tried to buck up the audience by pointing out that higher ed has a lot going for it in this debate of which it should take advantage. First and foremost, Colleges and universities have vast networks of faculty, students and alumni who come from every Congressional District in the nation, and who feel passionately about those institutions. Second, in the public's eye, colleges and universities are mom and apple pie, especially when compared to the entertainment industries, which occupy a place in the public's heart just above the oil and tobacco industries. Finally, higher ed has legal protection that guards it from copyright liability so long as they simply act as conduits for information and remove infringing material when asked by the copyright holder. Fears voiced by some that Congress might take that protection away are largely unfounded. Congressional leaders have made clear over recent years that it has not stomach for the firestorm from both sides that would accompany any changes to the DMCA.
I suggested that higher ed needed to do more of two things. First, it needs to engage a public relations firm that can help higher ed tell its side of the story and have it heard not only by members of Congress, but also by the media. Despite the economic threat to every college and university, the Reid amendment has barely registered a blip in either the mainstream media or in the blogosphere. Second, higher ed needs to work with public interest organizations, libraries, consumer electronics and technology companies all of which are working together to bring balance and a little reality back to copyright enforcement. These both will take substantial resources, but in the long run will preserve, rather than detract, from the real mission of colleges and universities.