To the dismay of many college and university leaders, Congress seems intent on imposing tough new requirements aimed at preventing students from sharing protected music and video files over the internet.

It’s a battle that higher education’s representatives in Washington thought they had won–or, at least, had put to rest for a while–after fighting successfully in early July against a proposal by Senate Majority Leader Harry Reid (D-Nev.) that would have required colleges to use technological means to curb so-called digital piracy.

Reid’s proposal, which was intended to become part of a then-pending bill to reauthorize the Higher Education Act, was withdrawn in the face of heavy opposition from academic representatives. 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.”

But two recent moves in the House of Representatives suggest that bipartisan support is growing for stronger provisions against digital piracy on campuses.

One of those actions came on Nov. 9, when Democrats on the House Education and Labor Committee introduced language that would require colleges to develop plans both to provide “alternatives” to peer-to-peer file sharing and to test “technology- based deterrents.” Institutions that failed to comply could forfeit their students’ eligibility for federal financial aid.

A month earlier, leading Republicans on the House committee introduced language to impose essentially the same anti-piracy requirements that college representatives had succeeded in blocking in the Senate in early July.

Now, with the House panel moving to create specific language for its version of the reauthorization bill, some anti-piracy provisions that many colleges have opposed seem likely to survive–although it remains uncertain how stringent those provisions will be and how soon Congress will vote on a final bill.

Meanwhile, higher education’s relations with the entertainment industry, which has been lobbying for tough requirements, have been deteriorating–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. (See “Illegal downloader ordered to pay $222K”.) 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.

Legislative efforts to link colleges’ anti-piracy actions to their students’ financial-aid eligibility have angered many campus leaders. In response to the House Republicans’ proposal, for example, Educause, a nonprofit association that promotes the “intelligent use of information technology” in higher education, argued that such a link would particularly hurt lower-income students.

Academic leaders have made a similar argument against the House Democrats’ proposal. Earlier, in presenting a series of “talking points” to its members and constituents across the country, Educause also raised these objections to the Republicans’ measure:

  • 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 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 Republicans’ measure, said recently that the push by film and music companies to obtain 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 met 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, said he was “sympathetic” to colleges’ concerns about a heavy-handed government role, but he called Educause’s opposition “extreme.” “What’s the alternative?” Ross asked. “That we just tolerate massive infringement” of copyright laws? He added: “I think there is a big bipartisan consensus that [the problem] has really been going on long enough.”

    The anti-piracy language proposed in the House on Nov. 9 was part of a bill advanced by the Education and Labor Committee’s chairman, Rep. George Miller, D-Calif. The earlier Republican proposal came from the committee’s ranking minority member, Rep. Howard P. (Buck) McKeon, R-Calif., and Rep. Ric Keller, R-Fla.

    Links:

    Educause material on file sharing

    Copyright Alliance

    Motion Picture Association of America

    Recording Industry Association of America