A university’s mission is educating its students. Congress should never thwart that. But nor should university administrations resist opportunities for education.

For those reasons we should all welcome the Higher Education Opportunity Act (HR-4137) that has emerged from a House-Senate conference and is on its way to passage in the House and Senate and then on to the White House for the President’s signature. The legislation recognizes that there is a serious problem with downloading and uploading of infringing works on college campuses, as university officials have acknowledged in testimony to Congress. But it avoids putting undue burdens on university administrators.

Here’s a section of the bill from Title IV:

(P) institutional policies and sanctions related to copyright infringement, including—
(i) an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities;
(ii) a summary of the penalties for violation of Federal copyright laws; and
(iii) a description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in unauthorized distribution of copyrighted materials using the institution’s information technology system;

Let’s look at that closely. Wouldn’t an educational institution want to inform students, once given access to a university-owned network, what behavior is legal and what isn’t? In fact, many universities already do that. Such pro-active steps can prevent a great deal of infringement, as can simply contacting the student once infringement is detected, as the Digital Citizen project has determined. The disciplinary measures mentioned in (iii) could thus be avoided for all but those who are determined to be repeat offenders.

So that is simply part of an educational institution’s mission, and the language leaves it in the hands of the institution to determine how the education will be done.

Autonomy is also given to the institutions of higher learning in the other key provision under Title IV:

(29) The institution certifies that the institution—
(A) has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents; and
(B) will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer or other designated officer of the institution.

As cited earlier, there are a number of technological means to reduce infringement on campus networks, and more are being developed all the time. Providing legal alternatives also seems logical; if you’re going to tell students that their chosen behavior is illegal, there is much merit in informing them of alternatives or when possible giving them access to those alternatives. That will also help to reduce infringement and keep the networks free and flowing for their intended use, facilitating learning by students and educating by faculty.

It’s understandable that some university officials would take umbrage at any direction from Congress in any area of their administration. In fact, I suspect there will be many officials out there who already meet all of these criteria above and may even be pursuing more pro-active measures who will still feel it is not Congress’ place to intervene. That’s a valid perspective, and it’s one we heard at an academic symposium at The George Washington University that we sponsored last December.

Yet in the course of that dialogue, a lot of common ground was found in this area. It was agreed that infringement on campus networks is both real and illegal, education often is lacking, infringement is a bad lesson for students to learn at their own higher education institutions, and infringement makes more difficult the ability of administrators to regulate the network and for legitimate uses to be done on the network. So I understand why some in the higher education community might not like the method with which progress will be made in the area of reducing campus infringement, but I think we can all agree the result, namely reduction of infringed creative works on campus networks, will be welcome.

UPDATE: The House has now, Thursday afternoon, passed the conference report by a 380-49 vote. The Senate is expected to take it up later today, CongressDaily has Senate Majority Leader Harry Reid saying; that body passed the original version 95-0.

UPDATE 2: The Senate has just now, late Thursday evening, passed the conference report by a vote of 83-8. Off it goes to the White House.

This entry was posted on Thursday, July 31st, 2008 at 12:46 pm by Patrick Ross and is filed under capitol hill, education, internet, p2p. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.