Congress Passes Legislation Requiring Colleges to Fight P2P

Higher Education Act, which forces academic institutions to fight a problem that resides largely off campus and at the expense of its central mission – education, now only needs President Bush’s signature to become law.

Late last week Congress formally passed the Higher Education Opportunity Act requiring colleges and universities to determine how they will fight illegal file-sharing on campus. Now it only awaits the signature of President of Bush who is sure to sign it into law.

Among the required provisions:

  • ‘‘(i) an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized P2P 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;

The bill’s passage has already been widely condemned in many quarters by educational institutions and public policy advocates alike.

The Common Solutions Group (CSG), a consortium of 25 educational institutions that includes some of this countries best and brightest like Harvard, UC Berkeley, Princeton, Brown, Stanford, Cornell, Columbia, Georgetown, and MIT, looked at the leading “infringement suppression” technologies and concluded that they were expensive, not very effective, and could suppress legitimate as well as infringing traffic.

From a press release:

…current products cannot stop all (or even most) unauthorized sharing of copyrighted material without interfering with the efficiency of the networks essential to research and teaching in higher education.

  • Audible Magic’s CopySense technology can most reliably identify only material that is registered with the vendor. Moreover, encryption can enable peer-to-peer traffic to bypass Audible Magic’s detection.
  • Red Lambda’s cGrid technology detects traffic patterns rather than suppresses infringement. It requires considerable administrative expense and specific network architecture and management tools to translate identification of patterns into suppression of infringement.
  • SafeMedia’s Clouseau technology blocks any communications its vendor deems undesirable. Network operators cannot override this blocking locally, even if the vendor blocks important non-infringing communications or otherwise disrupts network operations and effectiveness.

Current technologies can affect unauthorized sharing. However, their effectiveness is very limited, and they can suppress legitimate traffic along with infringing traffic. Fully deployed, they are also expensive. Although new approaches may yield effective, inexpensive, operationally benign infringement-suppression technologies in the future, implementing current technologies simply will increase tuition and research costs in higher education and degrade network performance while yielding only modest effects on unauthorized sharing.

The Association for Computing Machinery found that the mandatory use of these technological deterrents will “indirectly add to the costs of education and university research, introduce new security and privacy issues, degrade existing rights under copyright, and have little or no lasting impact on infringement of copyrighted works.”

It also points out the ultimate futility of content filtering technology, writing:

…motivated content thieves can encrypt their Internet traffic or use other obfuscation methods to bypass filters that are looking for some specific known signature of the copyrighted work. Obfuscation techniques – such as introducing “noise” to packets – create an inevitable, and expensive, arms race of measure and counter-measure between filters and infringers. It can be proven mathematically that this race will never be won by the side seeking to filter.

Encryption is an even more effective countermeasure as strong encryption of traffic will render filtering technology useless. When traffic is encrypted it becomes impossible for any technology to distinguish infringing traffic from non-infringing traffic, or even from routine encrypted traffic such as e-commerce transactions or corporate applications such as virtual private network traffic. Encryption is a widely available technology and one that could be readily incorporated into P2P applications.

Copyright holder groups like the RIAA and MPAA wasted no time praising the measure even though it will have no practical effect on illegal file-sharing as a whole.

“We congratulate Congressional leaders for including a common-sense provision that will help protect the integrity of taxpayer-funded university networks and encourage college fans to enjoy legal music and movies,” said RIAA Chairman & CEO Mitch Bainwol.

Though he ignores the fact that legal on-campus music services like Ruckus have been widely shunned by college students and has in fact been warning that it needs more subscribers to stay afloat financially despite the fact that many colleges offer the service for FREE to students.

There are many reasons why students are shunning Ruckus and they include:

  • The DRM use to protect music files prevents them from being used with some of the most popular portable music players such as the iPod and Zune.
  • Only purchased music from Ruckus can be burned onto CDs.
  • Ruckus music files carry individual licenses that must be renewed monthly by signing into service or playing media.
  • The service is not compatible with Apple Macintosh or Linux operating systems.
  • The Ruckus library of 3 million songs, while substantial, is smaller than the industry-leading iTunes Store (with more than 6 million songs).
  • Some albums may be incomplete – certain album tracks may be unavailable due to cross-listings on the service.
  • Inconsistent availability of explicit and clean albums; some albums have both types available, others only have one type available.

Would you even bother using such a service? Even if I was paid to use it I doubt I would.

The MPAA also expressed its glee that it’s now allowed to make sure that college students, most of limited financial means, are properly scrutinized to ensure the entertainment industry gets every dollar it feels owed.

Now if your recall, the MPAA once blamed college students for 44% of domestic piracy losses. It later revised the figure to a miniscule 15% which, if you subtract students who live off campus and who thus won’t be affected by the legislation, means that they’re responsible for 10% at most. Is 10% a figure really worth the impact IP enforcement will have on our already fragile educational institutions?

The MPAA knows that it won’t have a substantial impact on domestic piracy losses, but like all good businesses a loss is a loss no matter how trivial. Too bad the cost of filtering the network traffic of this country’s educational institutions where the free flow of ideas is critical isn’t as trivial.

“We work closely with leaders in the higher education community because we both have a stake in ensuring that intellectual property continues to be a strong, vibrant part of our nation’s economy,” said Dan Glickman, Chairman and CEO of the MPAA. “Our objective is always to encourage encourage college students and all consumers to find the content they want from the many legitimate options available. By including these important provisions in the Higher Education Act, Congress is sending a strong message that intellectual property is worth protecting. We look forward to working with colleges and universities to raise awareness of the legal alternatives to piracy.”

Despite all the MPAA’s doom and gloom about file-sharing the movie industry has enjoyed record ticket sales. In fact, last year they grossed more than any year since the advent of file-sharing except 2004. With the continued rise in popularity of file-sharing networks, the increasing power of computers, the decreasing complexity of such programs, the greater public knowledge of file-sharing, and the increasing connectivity of computers with televisions, as well as the increased availability of hardware able to play video files from the internet, it’s contrary to film industry claims to discover that each year has been better than the last for the MPAA over the last several years. Last year’s record profits illustrate that there is no real urgency for legislation targeting colleges and universities as much as it would have you believe.

I can’t say that I blame the entertainment industry for acting on its own economic self-interests, the hallmark of any good business, but Congress is supposed to always act in the best interests of the public not private sector.

Passing the Higher Education Act with requirements that colleges and universities fight a battle to save the business models of third parties at the expense of this country’s educational future is downright criminal and anathema to everything this country is supposed to stand for.