Wednesday, November 14, 2007

The DMCA and The New HEA

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."