Ugh, the bill with the horrid p2p provisions passed the house without a word about those provisions.
For further reading:
I’m disgusted.
Update: Didn’t pass the house–just the committee. But the vote was unanimous. Sigh.
I am feeling a bit like New Kid today–pretty cranky–and I was going to write something random, but I wanted to comment a bit more on the proposed House legislation that would require colleges and universities to provide legal options for downloading music and require them to have a plan to prevent illegal downloading. Dean Dad already expresses some good reasons why the bill is a bad idea. His commenters, however, don’t seem to completely understand the law nor how networks work enough to know how crazy this really is.
One commenter notes that higher ed moves too slowly for this to get implemented. By the time it gets out of committee, they suggest, the provision will be dead. Unfortunately, at many institutions, technology decisions such as these don’t go through faculty committee. Software and hardware purchases (big ones) are made all the time without any faculty input. Sometimes the IT department may try to get input and the faculty say, whatever, we don’t understand what you’re saying so just do what you need to do. This varies by school, obviously, but I’m in touch with enough schools to know it’s not unusual.
Another commenter suggests that students should get the music from the library. If they rip that music and make a copy for themselves, that’s illegal. At least as I interpret the law. I also feel that copying a whole book for yourself would be illegal.
Another commenter says “If somebody is breaking the law, call the police. Throw the book at them. If they’re not, get the hell out and leave them alone.” This is more complicated than it might seem. When someone’s “caught” “downloading,” they’re actually not caught downloading at all. They’re caught sharing their music. Most p2p programs having a shared folder which is “on” by default. Some programs ask where your music is stored and share that instead or in addition to the folder where the downloads go. It’s possible to have not downloaded anything, in fact, and be sharing your whole music collection for others to download. And that is illegal. Secondly, when someone is caught sharing, all the RIAA or other agent has is an ip address and a time-date stamp for when the activity allegedly took place. They need the colleges to provide them with identifying information in order to “call the police.” Right now, the DMCA protects all isps from being liable for illegal activity on their network as long as they forward any notices about the activity to the user associated with the ip address. This is why as the commenter says, “it seems to be the college’s responsibility to do something about it.” The way the law is written and interpreted now, if we don’t, they will come sue us. This has not been really tested yet, so no one knows for sure if that’s what would happen, but that’s the assumption. One way this could work is for the RIAA to be required to submit subpoenas for every violation. That’s a much more time-consuming and costly process for them, so they’re not inclined to do that. From our perspective the work load is the same whether we get a subpoena or not.
Who knows what they mean by providing legal alternatives for downloading. It could very well mean providing access to iTunes by just installing it on the public machines. Or it could mean requiring a subscription service. Preventing illegal downloading would be difficult and costly. Dean Dad’s right, both of these would be onerous in some places. Maybe some of the richer schools would be able to do this but many schools couldn’t afford it. I concur with Dean Dad: “I’d rather spend public aid to higher education on scientific research and faculty and libraries and tutoring and daycare and textbooks than on Napster.”
Democrats have included in the latest higher education bill a provision to punish colleges and universities who do not “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.” Congress has been trying to get something like this through for quite a while. I wrote about this back in March. I don’t know what’s sadder–that Democrats are the ones pushing for this or that they’re sneaking it into a bill that hopes to lower college costs. Requiring colleges to purchase expensive subscription services or implement a technical solution is not going to help lower costs. Many colleges already have trouble keeping technologically current and many of the solutions require certain levels of infrastructure to be in place. I know a few colleges and universities are fighting the RIAA, but most are complying with requests that come in. I’m disappointed that our congresspeople would be so obvious about where their loyalties lie. I’m off to write letters.
This week’s Tech Therapy (yes, I listen) is an interview with Cary Sherman, president of the RIAA. About halfway through, Scott Carlson asks a question I sent in (I’m identified by name and school) about whether colleges and universities are doing enough to meet the DMCA requirements. He couches his answer by saying that some are doing a good job and some are not. He focuses on education as something that colleges should be doing more of since they are, after all, institutions of learning. He sees it as the colleges job to educate students about illegal downloading, something he actually raises in the question before. He discusses the way colleges crack down on plagiarism but now downloading. He says colleges should teach values and ethics. And I have to disagree a bit. Sure, most colleges try to instill ethics and values, but that’s not our main job. We teach disciplines. I know our student affairs office tries to deal with some of these issues, but really we’re not their parents. There’s only so much we can do. And I think we probably do a better job than larger institutions. I do think we could probably do more to educate students about this issue, but I have another job to focus on, so it’s not going to be my top priority. And I don’t think it should be–just as it shouldn’t be my top priority to educate students about drinking or safe sex.
Meanwhile, some institutions are fighting the RIAA’s tactics in court. And others are complaining that content owners, like the RIAA, have too much control over current copyright law and fair use is disappearing. I think that the battle between colleges and the RIAA is indirectly about fair use. The RIAA and other content owners continue to try to lobby lawmakers to extend copyright restrictions and make using materials illegal even in educational settings. They don’t seem willing to compromise on this issue and so colleges and universities don’t feel like doing any more than the bare minimum to follow through on RIAA requests to sue their students.
Meanwhile, some institutions are fighting the RIAA’s tactics in court. And others are complaining that content owners, like the RIAA, have too much control over current copyright law and fair use is disappearing. I think that the battle between colleges and the RIAA is indirectly about fair use. The RIAA and other content owners continue to try to lobby lawmakers to extend copyright restrictions and make using materials illegal even in educational settings. They don’t seem willing to compromise on this issue and so colleges and universities don’t feel like doing any more than the bare minimum to follow through on RIAA requests to sue their students.
I hate current copyright law. I’m not a lawyer and I haven’t gone over all of it with a fine-toothed comb, but much of it is dumb and preventing most of us regular people from engaging in activities that are educational, entertaining, and enlightening. What else is there to live for?
Many of you know that I’m our DMCA agent. I know that downloading and sharing copyrighted material is illegal. I don’t condone it. But I also know that the music industry brought some of that on itself by not coming up with a viable business model for online music sales, by using DRM, and by not selling a good portion of its catalog most of the time. And the RIAA, the MPAA, and other organizations tend to treat their customers like criminals, mostly in the tactics they use to attempt to keep people from illegally downloading music. And those tactics don’t really stop the downloading, and they are sometimes wrong. A recent Economist article points this out:
Belatedly, music executives have come to realise that DRM simply doesn’t work. It is supposed to stop unauthorised copying, but no copy-protection system has yet been devised that cannot be easily defeated. All it does is make life difficult for paying customers, while having little or no effect on clandestine copying plants that churn out pirate copies.
I don’t like the way the RIAA is basically making colleges (and ISPs generally) do their work for them. It’s akin to the FBI calling up a neighbor, telling them they think I have a stolen item in my house and would they go check please and have me return it. But this is the deal struck in the DMCA so that colleges and ISPs wouldn’t get sued. Myself and another staff person spend a couple of hours or so each week investigating claims, writing notes to students, following up with students, shutting off their internet access and then restoring that access when they comply.
But the RIAA isn’t the only organization that’s copyright happy. Other publishers have been overstepping their bounds as well. If you don’t follow the science blog beat, there was a pretty big scuffle over fair use of some figures by science blogger Shelley Batts, which I found via Janet and which made the rounds of the big blogs and landed in Scientific American. Here is the fair use clause:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
The copyright office recommends always getting permission because the fair use guidelines are not clear. Lovely, huh? We have unclear laws, so we’re going to put the burden on you all, especially academics, to make sure you’re not violating the law while doing work that benefits society as a whole. As more and more academic work goes online, publicly, this is going to be a huge issue, simply because that work will be more visible and may then be open to more cease and desist notices. Something that is in the public good may get restricted because of poorly worded and poorly understood copyright laws. I recommend a visit to the EFF to support changes to the DMCA that will help fair use.
Another way in which our copyright and royalty structures hamper us is in the reproduction in new formats of movies and tv shows. Anyone remember the Eyes on the Prize dilemma? Here is a rundown. Basically, the production company couldn’t afford to renew licenses for news footage and especially music that had been used to create the film and so they couldn’t show it again on tv or reproduce it in DVD format. Although the Eyes on the Prize case got a lot of publicity because of the obvious benefit to the public of showing this documentary, this kind of thing happens to lots of films and tv shows. Remember WKRP? Well, they can’t make a DVD box set of it with the original music. Denis Hancock puts it best:
Now of course it’s important for music labels to protect their IP, make money from it, and all the rest. But for some reason I have this notion that if my Dad got to re-live one of his favorite shows (while paying for the privilege), and be reintroduced to some of his favorite music from the time he might do something crazy like try to buy the full songs or CDs! Or he might have me watch the show with him, like I vaguely remember doing many years ago – and I might hear music I never even knew existed! And I might buy something too!
Nope – can’t have that. If someone had an emotional reaction to Johnny Fever blaring the Ted Nugent rocker when the station mercifully flipped back from a temporary move to easy listening… can you imagine the chaos that might ensue? It must be far, far better to keep the music under lock and key and make sure no hears it so, er, money can be made. Right.
Shooting themselves in the foot, these people. I don’t understand it. Not to mention the real loss to the study of American movie and tv culture if these artifacts are destroyed. Sure libraries can archive these movies and shows (because of fair use). Libraries don’t archive everything. Sometimes they don’t know they need to until a professor comes to them and says, “Hey, I’m studying x. Do we have that available somewhere?” And then, sometimes, after a fruitless search, we find that x no longer exists.
Finally, we have the whole “analog hole” problem. The MPAA and the RIAA are attempting to close the analog hole, which is a) nearly impossible and b) would make it impossible to do some very basic tasks, like watch tv. Film studies folks have been granted permission to circumvent copy protection in order to make film clips for teaching and research, but ip owners are still forging ahead with making copy protection harder and harder to circumvent. One day, we may have to pay out the nose for equipment that will allow us to do our jobs.
So let’s review, the RIAA extorts money from people, publishers don’t understand fair use, we don’t have access to older video material because producers can’t afford to renew music licenses, and copy protection measures continue to increase. And I didn’t even talk about YouTube and Viacom. Great world we live in, eh?
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I wasn’t going to write about this anymore, but I can’t help myself. Yesterday, the Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on the issue of downloading on college campuses. Congressman Howard Berman suggests that colleges aren’t really doing enough to combat piracy. He claims colleges are hypocrites, saying:
Perhaps the most ironic issue is that many universities expect others to respect and protect their IP rights to scholarly works and inventions, but seem to disregard or close their eyes to the theft of the creative works of others. (via Ars Technica)
This is so far from the truth as to be laughable. I floated a question about how other schools were handling this situation to an email list of other IT managers. I got lots of responses outlining various strategies. Everyone is taking this seriously. Though we may serve as ISPs for our students, we don’t have the same resources as those ISPs. For example, most ISPs keep log files for 180 days, something we don’t do for space reasons. Now, though, we’ll be rethinking that.
In addition to having to rethink some of our practices, it was suggested that colleges and universities apply filtering software to our networks. We already do a lot of monitoring of our network. What they’re talking about is purchasing a commercial product. In some places, such a purchase may not cause an undue burden, but in places (like ours) where we’re already stretched pretty thin, this could be a real problem.
As our attorney said, what we really want to do is get back to what we’re here for: educating students. All of this is a big distraction.
Let me point out, for the record, that two of the key Congressmen advocating for these stricter measures are democrats. If any of your representatives are on this list, you might consider writing them.
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Ironically, after my last post, I started doing some searching to see what else was going on with this recent RIAA crackdown and I found out that Gizmodo has declared a boycott. They did not suggest the boycott in order to increase downloads or condone illegal downloads, but to point out that you can buy music from non RIAA labels (at eMusic, for example) or go see a show or buy band merchandise, all of which puts more money in the artists’ pockets instead of the RIAA’s. I did my part by joining eMusic. Check out all the posts at Gizmodo on the RIAA boycott–very informative.
In a separate, but related find, that might interest the politically-minded among you, was Open Congress. I’m following the fair use bill and the new dopa bill. Who knew one day I’d use RSS to track Congress.
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The RIAA is increasing its efforts to stop downloading on college campuses. Their new strategy involves sending out settlement letters to students. The letters, presumably, will be more threatening than the current takedown notices they send out regularly. I happen to be our campus DMCA agent. I’m the one who receives those takedown notices and who forwards them to the students. I had read the article referenced above, but because we receive so few notices in the first place (about 1/month), I figured we probably didn’t have anything to worry about. Monday morning, however, I received a notice that one of these letters would be sent soon. The language was indeed more threatening and the word “subpoena” appeared in the letter. So we traipsed off to the lawyer’s office to discuss strategy.
I’m not thrilled to be the DMCA agent. I know downloading is illegal. I don’t condone it. But I believe that it is (maybe just was) a reaction to an industry that didn’t keep up with the capabilities of new technology. Even though the industry does now provide legal ways to download music, movies, and tv shows, there’s still the DRM issue. Many people, myself included, have issues with DRM. For some, that means they find legal ways to obtain DRM-free music. Others resort to downloading.
Even though I will do my job as the DMCA agent, I was still feeling a little creepy about the whole thing. The new strategy felt a little more draconian, and I didn’t want to become more draconian in response. Kenneth Green articulates a possible reason for my discomfort. College students may be unfairly targeted. Why isn’t the RIAA going after more individuals in homes? Or better yet, people who make pirate copies of CDs and DVDs? In fact, Green says, the strategies offered by the RIAA to combat illegal downloading smack of extortion (one option is to provide access to legal music downloading). Green says that when asked about why the RIAA was focusing on colleges instead of ISPs, they said “the consumer broadband providers view litigation as a cost of doing business, while, in contrast, the RIAA knows that colleges and universities, when presented with the threat of litigation, will ‘jump.’” In other words, we may be low-hanging fruit for them.
At some point, I think the RIAA is going to have to figure out ways to allow people to buy music legally and to share it legally, not via these P2P programs, but in similar ways that we always have–the digital version of mixtapes. DRM sometimes makes this difficult. Maybe I’m being idealistic, but maybe if they stop treating their consumers as criminals, they’ll stop acting like criminals. A little mutual respect might go a long way.
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