College and university leaders who recently staved off an unexpected attempt in the U.S. Senate to make their institutions use technological means to prevent students from sharing protected music and video files over the internet have been forced to wage the same battle on a second front: the House of Representatives.

In the process, higher education’s relations with the entertainment industry, which has been lobbying for the requirements, have deteriorated–so much so that the situation could jeopardize continuing efforts to resolve campus-based electronic copying issues on mutually acceptable terms.

The conflict has flared anew, moreover, at a time when representatives of film and music companies–principally the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA)–have taken an increasingly aggressive stance against so-called digital piracy.

The industry’s cause drew fresh encouragement on Oct. 4 when, in the first case of its kind to go to trial, a federal jury ordered a Minnesota woman to pay $222,000 for sharing copyrighted music online. And on Oct. 12, in yet another sign that entertainment companies are feeling more empowered these days, RIAA sued the global network Usenet.com for allegedly harboring millions of copyrighted recordings.

In the political realm, the latest confrontation unfolded on the same day that the Minnesota verdict was issued, after two leading members of the House Education and Labor Committee proposed language to impose essentially the same anti-piracy requirements that college representatives had succeeded in blocking in the Senate in early July. The new measure came from Rep. Howard P. (Buck) McKeon, R-Calif., the House committee’s ranking minority member, and Rep. Ric Keller, R-Fla.

The Senate language, which had been introduced by Majority Leader Harry Reid, D-Nev., as part of a then-pending bill to reauthorize the Higher Education Act, produced heavy opposition from academic representatives and was soon dropped. The Senate then passed the reauthorization bill, 95-0, with a provision calling on academic institutions to caution students against “unauthorized peer-to-peer [P2P] file sharing.”

Now, however, efforts to reintroduce stringent rules against improper file sharing by attaching them to the House’s version of the reauthorizing legislation have angered higher-education leaders anew and prompted them to mount a strong counteroffensive.

In response to the McKeon-Keller measure–which college leaders complain would bar students from receiving federal financial aid if the bill were enacted as currently structured–Educause, a nonprofit association that promotes the “intelligent use of information technology” in higher education, issued an “urgent call to action” on its web site and in eMail messages.

Pointing to a series of “talking points,” the organization asked members and constituents across the country to contact lawmakers and register their opposition to the McKeon-Keller language. The appeal was similar to one that the group made in July over Reid’s proposal in the Senate.

Educause has raised these objections to the proposed legislation:

  • It would give “unprecedented authority” to the Secretary of Education to identify the 25 colleges receiving the highest number of written allegations of copyright infringement each year. Educause said the language would make the Secretary “an agent of the entertainment industry.”

  • The measure would rely on unverifiable data and would give the entertainment industry control over which institutions to target and the method for identifying “alleged offenders.”

  • Colleges would be required to “take technological steps to block allegedly infringing material … when there is no consensus on what technology can adequately and accurately accomplish that goal.”

  • The proposed language ties noncompliance by colleges to a loss of federal student aid, which the association said would hurt lower-income students the most.

  • The legislation would unfairly single out colleges when “the majority of infringements occur on commercial networks.” In addition, Educause said, the measure would do “nothing to educate or intercede with pre-college-age students, when most of the illegal P2P activity is learned using home computers running on commercial networks.”

    Mark A. Luker, an Educause vice president and a leader of higher education’s campaign against the McKeon-Keller measure, said it was clear that representatives of the entertainment industry would “continue to push” for Congressional action. He added that the insistence of film and music companies on punitive legislation was problematic for colleges and made it “very hard to work with them” on a cooperative approach.

    In the background, as anti-piracy lobbyists have persisted with calls for tougher action against unauthorized digital copying and file sharing on campuses, a group of academic and entertainment industry representatives has been meeting to explore the prospects for finding common ground.

    A key question has been whether new technological approaches might effectively prevent illegal file sharing over campus networks, without compromising legitimate copying or forcing colleges into a “policing” role that many of them consider to be contrary to their missions.

    The colleges’ position has presented them with a tactical challenge because, in opposing what they believe would be an ill-advised government intrusion into campus affairs, they run the risk of appearing to be “soft” on illegal duplication of copyrighted material–a characterization they reject.

    Advocates of the entertainment industry’s viewpoint, meanwhile, have sought to capitalize on the notion that, in opposing federal anti-piracy legislation, some college leaders seem to be making what an industry spokesman called “a conscious decision not to enforce the law.”

    The spokesman, Patrick Ross, executive director of the Copyright Alliance, a nonprofit organization, described the proposed House measure as “a pretty modest first step.” Saying he was “sympathetic” to colleges’ concerns about a heavy-handed government role, Ross nevertheless labeled Educause’s opposition “extreme.”

    “What’s the alternative?” Ross asked. “That we just tolerate massive infringement” of copyright laws?

    Although the fate of the McKeon-Keller language remains uncertain–as does the prospect for final Congressional action on reauthorizing the Higher Education Act–Ross maintained that sentiment in support of reining in illegal file sharing had reached a critical point on Capitol Hill.

    “I think there is a big bipartisan consensus that [the problem] has really been going on long enough,” he said.

    At the same time, both Ross and Luker appeared to hold the door open to at least a temporary compromise.

    In response to a question, Luker said the higher-education community could “live with” the softer language on file sharing that ended up in the Senate reauthorization bill. Ross, meanwhile, remarked: “Any language is preferable to what we have now.”

    Links:

    Educause material on file sharing

    Copyright Alliance

    Motion Picture Association of America

    Recording Industry Association of America