Hollywood and the recording industry have a long history of forcefully requiring third parties to bear the cost of enforcing their copyrights. The entertainment industries' lawsuits against consumer electronics and technology companies are legion; the predecessors to the VCR, iPod and TiVo were all sued either by Hollywood or the recording industry. The fact that all of these technologies have redounded to the economic benefit of the entertainment industries has not stopped them; witness Viacom's lawsuit against YouTube, which announced last week that it will begin to filter its site for infringing content. Thanks to an industry-friendly Congress, U.S. taxpayers also contribute to the industry's enforcement efforts, paying hundreds of millions of dollars annually so government can bring criminal actions against willful infringers. If the industries have their way, the government will soon bring civil lawsuits on their behalf as well.
But new institutions are now in the entertainment industries' crosshairs -- America's universities and colleges. And it isn't a fair fight. The industries, aided by seemingly unlimited resources and their friends in Congress, are pulling out all the stops to pressure higher education institutions to filter their networks for instances of copyright infringement. It has revved up its public relations machine, claiming for example "more than half of college students download music and movies illegally." And it has persuaded three different Congressional committees and subcommittees to hold no fewer than four hearings over the past two years to examine the issue.
Not content with efforts higher ed is making to educate students and police its networks, Hollywood and the recording industry this month convinced Senate Majority Leader Harry Reid to introduce an amendment to a bill that sees to make college more affordable. The amendment conditioned federal funding on colleges filtering their networks and compiling reports on those measures for the Secretary of Education. It also called for the Secretary to publish a report on which 25 colleges and universities get the most written accusations of infringement from copyright holders.
The flaws to such an approach are obvious -- filtering technologies don't work -- they often filter out material that they shouldn't, and don't filter out material that they should. And the number of notices of alleged copyright infringement a college or university receives says nothing about the efforts of the institution. Infringement notices have a long history of being sent indiscriminately by people who turn out not to have valid copyrights, often to people who haven't infringed anything.
For the higher ed community, which has done its best to engage in dialogue with the 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.
This close call clearly has the higher ed community spooked and talking appeasement. 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, the recording industry's own number indicate that college students accounted for just 4 percent 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.
As evidenced by its swift and successful response last week, higher ed isn't completely helpless. It has a vast network of faculty, students and alumni who come from every Congressional District in the nation. And 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. Higher ed also 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. But higher ed needs to tell its side of the story and have it heard not only by members of Congress, but also by the media. And it needs to work with consumer electronics and technology companies, libraries and consumer organizations who are working together to bring balance and a little reality back to copyright enforcement. This too will take substantial resources, but in the long run will preserve, rather than detract, from the real mission of colleges and universities.