No Rights Reserved: The Role of the University in Student Copyright Infringement

Posted in The Gnovis Blog

It’s been a particularly active month in the four year saga of the Recording Industry Association of America’s legal assault on direct copyright infringers.

The first file-sharing case to ever reach a jury trial, Virgin v. Thomas , was decided on October 4th. Thomas was found guilty and asked to pay some $9,250 for each of the 24
illegally shared songs that were the subject of the lawsuit, which comes to $222,000 in total penalties, for a list of songs that could have been obtained for roughly $25 on iTunes.

Several university campuses received a new surge of pre-litigation letters and subpoenas amounting to a total of roughly 26,000 summons since 2003. One such instance hit particularly close to home when our neighbors at George Washington University joined the ranks of colleges singled out by the the RIAA, receiving a subpoena on October 11th to reveal the identities of 19 potential infringers behind IP addresses flagged for illegal activity.

According to RIAA spokesperson Cara Duckworth, these J. Does had also received pre-litigation letters, and failed to contact the RIAA as written in the GW Hatchet . The University could not comment on having received said letters.

GWU plans to oblige the court order, but they have not revealed how long the university keeps IP addresses on file, and the examples in the RIAA’s subpoena date back to January.

According to CNet
: There is no legal obligation for colleges or universities to keep records of temporary IP address assignment, assuming addresses are allocated on demand through a protocol like DHCP. (They also can be allocated semi-permanently based on geographic location such as residence hall or campus office.)

The RIAA has established a program of prosecuting individuals directly, asking colleges to ferret out the identities of alleged infringers, which music corporations could not do otherwise. This has put a great deal of pressure on universities who have generally chosen to appease the industry, likely to avoid unwelcome oversight .

One such example is the amendment proposed by Senate Majority Leader Harry Reid (D-NV) to the Higher Education Reauthorization Act, attempting to
hold educational funds hostage for universities
that do
not meet a set of criteria demonstrating a commitment to anti-piracy. The proposal was dropped before the amendment was ever voted on, but Congress’ apparent willingness to adopt the cause of the recording industry against educational institutions is more than a little disconcerting.

The reality is that schools can do very little to effectively discern illegal transmission on their networks. Traffic shaping
systems can monitor and alter the rate of data negotiation on a network,
but say very little about the legitimacy of transfers. In some cases a content filter can be implemented that seeks to block
transmission of copyrighted material by identifying the content of
copyright-infringing files, but can be easily bucked by encryption
practices, used in 90% of all illegal P2P downloads.

Should institutions of higher learning utilize valuable resources to act as legal agents for the recording industry, leveraging legitimate academic use of file transfer against the profits of music corporations?

If GWU discloses the names of the 19 J. Does accused of piracy, the RIAA will then present each with the opportunity for a discounted settlement totalling about $3000… if they settle immediately. That basically amounts to extortion. These are vageuly written, one sided settlements, directing students to contact the RIAA
rather than an objective third
party for legal advice and they are only given 25 days to comply or risk suit.

Particularly in the wake of judgements slamming defendents with
extremely punitive and grossly disproportionate charges such as in Virgin vs. Thomas, what student would choose to fight a lengthy legal battle with the RIAA, even if she thinks it might be possible to win?

In addition, these proceedings have generally occurred on an ex parte basis, which means one side, generally the defendents in this case, are not present in the courtroom or aware of communications made by the plaintiffs. These practices are not unheard of but are suspiciously peculiar in a situation which the imbalance of power between plaintiff and defendent is so clear.

The RIAA has admitted to losing money in this campaign against individual users who have no money to pay up. And in the time since their legal onslaught began in 2003, P2P activity has actually tripled, particularly in less detectable forms such as bit torrent networks, as opposed to open networks like Limewire.

So what is the real point in the recording industry pursuing what have been deemed unconstitutional statutory damages if they’re not even functioning as deterrants? Furthermore, why should universities compromise the importance of free copyright for legitimate academic purposes, in the name of questionable and ultimately ineffective aims that are inimical to the pursuit of education?

Although it is likely that a substantial amount of illegal file sharing occurs on college campuses, upholding the importance of free property rights for academic purposes should outweigh the interests of private corporations and their failed business practices. It seems especially ridiculous for the RIAA to single out university ISPs because it’s obvious they are doing so out of circumstance.

are much more nefarious file-sharing networks dedicated almost exclusively to the illegal
trading of copyrighted materials, such as OINK, the invite
only network of ~ 180,000 traders which was shut down last
week. It was found that patrons gave money in the form of
donations, potential proof of truly commerical distribution. In addition,
there was a great deal of unreleased work found on the network, which
is seen as especially threatening to artists.

Whether or not there are more worthy targets for the RIAA to pursue, it is imperative that colleges defend the validity of digital file sharing which is so crucial to current forms of scholarship. Preventing copyright infringement is certainly an important goal in the university. But bending to the RIAA to such a degree will only encourage music corporations to continue placing universities in the perverse position of having to shake down their own students rather than focus on educating them.

Related Links:

Georgetown University’s Copyright Policy

University of Tennessee’s Instructional Video on what is and is not legal downloading.

Creative Commons
alternative to traditional Intellectual Property rights