The recording industry has continued to ratchet up its war against peer-to-peer file sharing, and lately it has been working overtime to draft universities into the fight. Some universities have responded to this pressure by deploying a variety of sticks and carrots. For example, we reported last month on a new University of Kansas policy that students would be kicked off the campus network permanently the first time they were caught using file-sharing software. In a recent roundup, MTV reported that UC-Berkeley and Harvard will also begin imposing heightened penalties for students caught engaging in file sharing. Other colleges are focusing more on carrots, by automatically signing students up for legit (if DRM-encumbered) download services like Ruckus and Rhapsody in hopes of deterring students from breaking the law.

But these efforts have apparently not pacified the recording industry. Last month, Senate Majority Leader Harry Reid proposed an amendment to the Higher Education Act that would have required schools with large numbers of file-sharing complaints to report to the federal government on their anti-piracy efforts and to implement "a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property." The proposal was shelved after universities raised concerns over its costs, but expect it to be brought up again in the future.

The decision to single out institutions of higher education is troubling. To be sure, peer-to-peer copyright infringement is a common occurrence on college campuses. But universities are simply acting as Internet service providers, and it's well-established that the Digital Millennium Copyright Act shields ISPs from liability for the infringing activities of their users provided that they promptly remove infringing material once they have been notified of its existence.

That rule has served us well over the last decade, and it shouldn't be changed without a good reason. And if the DMCA's safe harbor rules are going to be changed, they should be changed for all ISPs rather than singling out one category of ISPs for heightened liability. Singling out universities is particularly troubling because universities are devoted to academic freedom and the flow of information. That doesn't mean that universities should condone lawbreaking, but it certainly seems incongruous to require universities to snoop on their users more than commercial ISPs.

It's also not clear why—aside from intensive lobbying by the recording industry—Congress would want to single out file-sharing as a problem in particular need of government-mandated snooping. People can engage in all manner of illegal activities online—online gambling, trading child pornography, spamming, or planning terrorist attacks. While illicit file-sharing is certainly a problem, it's hardly the most serious crime being committed online.

Collective licensing

A better solution is the one proposed by the Electronic Frontier Foundation in a recent report: instead of transforming college campuses into a miniature surveillance state, record labels and universities could enter into a collective licensing agreement under which the university would pay a flat fee to the record labels in exchange for the right to utilize peer-to-peer applications on campus.

That would ensure that the labels are fairly compensated for their music while simultaneously preserving the free flow of information that is the hallmark of a modern university. As EFF points out, there is ample precedent for such an arrangement, including blanket licenses universities already pay for a cappella music performances and software. There are also collective licensing organizations that collect hundreds of millions of dollars in royalties every year on behalf of composers. And EFF's proposal doesn't require any action from Congress; many existing collective licensing authorities are private organizations whose members have joined voluntarily.

College campuses are an ideal place to experiment with collective licensing arrangements. There would be little downside for the labels because illicit file-sharing rates are already high among college students. And colleges already have existing payment infrastructure in place that would make it easy to collect fees from students. Perhaps best of all, if the experiment proves successful, it would create demand for similar deals in the "real world" as college students graduate. In a couple of years, the RIAA might begin selling similar blanket licenses directly to students or perhaps to the ISPs.

Universities should speak out

Instead, the recording industry seems determined to draft universities into the role of copyright cops, forcing schools to snoop on their students' online activities and assist in the prosecution of their own customers. Fortunately, colleges and universities have substantial lobbying clout of their own, and so far they've successfully resisted efforts to single them out for special treatment. But it would be better for the universities to plot an affirmative strategy of their own. EFF's collective licensing proposal is a promising model. Instead of acquiescing to the recording industry's ever-escalating demands, universities should band together and refuse to do more than the legally-required minimum to assist the recording industry unless the labels reciprocate by exploring alternative compensation models.

If the labels insist on a lawsuit-only strategy, universities should use their substantial soapbox to highlight the inequities of the RIAA's lawsuit campaign. To be sure, it's hard to have sympathies for those who knowingly flout the law. But the RIAA does make mistakes in its choice of targets, and when it does so, the defendants have little opportunity to defend themselves; hiring the necessary legal counsel can cost more than the settlement amount. Moreover, the lawsuit campaign is consuming enormous court resources with little apparent deterrent. We would all be better off with a means of compensating artists that didn't involve tens of thousands of lawsuits.

It's also becoming clear that the universities' strategy of appeasement hasn't been working very well. Spending millions of dollars on anti-piracy seminars, heightened penalties, and legit music services like Ruckus and Rhapsody has not dissuaded the recording industry from asking Congress to mandate still further assistance. The defensive posture universities have adopted so far has only encouraged the labels to make still further demands. Instead, universities should go on offense, using the substantial prestige of higher education to develop and promote less litigious solutions to the file-sharing problem.

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