Digital Rights and Wrongs

Posted on August 8, 2007 by David Gray

Recently, Senate Majority Leader Harry Reid of Nevada (this is a link to his website) said he was planning to introduce an amendment to the Higher Education Reauthorization Act that would require colleges and universities to adopt a policy and reporting procedure relating to “illegal downloading and distribution of copyrighted material,” and require the Secretary of Education annually report to Congress which 25 universities have received the most infringement notices from copyright owners; for the exact details, click here. Fortunately, several higher education interest groups including the American Council on Education, the American Association of Universities, and EDUCAUSE (the higher education association representing academic IT professionals) intervened effectively to short-circuit consideration of the Reid amendment. While the amendment has been taken off the table (for the time being, at least), the debate surrounding the competing interests of property owners and consumers in the digital age rages on. The proposed Reid amendment, its underlying flawed premise, and an admittedly serious social issue, however, are still worthy of our attention and debate.

Many in positions of authority in Congress and the entertainment/recording industry would have people believe that universities have orchestrated or endorsed a conspiracy of carelessness when it comes to intellectual property rights. As one example, as reported in this Inside Higher Ed news item, I point to a statement by Mitch Bainwol, chairman and CEO of the Recording Industry Association of America (RIAA). He communicated his view on this subject in a letter he sent to Senator Reid praising the planned amendment: “Colleges have provided an ideal environment for online theft to thrive, producing a generation of citizens lacking an appreciation for the true value of copyrighted works.” That is in my opinion an antagonistic, arrogant and ignorant statement. I urge you, in fact, to read the Inside Higher Ed news item in its entirety for a fairly balanced overview of the various positions on this matter. For an interesting legal perspective on the issue, University of Minnesota Law Professor William McGeveran has authored a blog entry on Concurring Opinions that cogently and effectively assails the Reid/RIAA amendment.

Here’s why the proposed amendment is flawed, unfair, and unworkable.

First, universities and colleges are dominated by faculty members with an avid professional interest in, and deep appreciation of, the appropriate protection of intellectual property rights — their own as well as others. Second, I can tell you there is no contemporary, reliable, or affordable technological solution to this issue (in addition to my role as CEO of UMassOnline, I am Vice President for Information Technology and CIO for the University of Massachusetts). Third, college students’ morays and habits (both desirable and undesirable) are well-formed prior to their arrival on campus. While colleges can, should, and do seek to encourage and influence appropriate behavior and respect for the law, it is unrealistic to expect them to change the behavioral patterns of students to any significant extent. Fourth, the proposed legislation–in keeping with the wishes of its RIAA progenitors–unfairly singles out institutions of higher education while not touching other internet service providers (which collectively transport the bulk of the illegal sharing of music and video files).

As such, Senator Reid’s proposal in my view espoused a sledgehammer and simplistic approach to a very nuanced problem. It ignored the fact that every reputable college and university has long taken good faith steps to educate their student bodies about the need to honor digital rights and intellectual property. It suggested that in addition to our foremost purpose we add policing to our duties. And, perhaps my chief objection is this: In America we believe in any person’s or any instiutution’s presumed innocence until proven otherwise. This proposed amendment presumed that colleges and universities were guilty and it ruled that we must prove our innocence.

Students, faculty, staff members and all others who are passionate about this issue may want to consider doing two things. First, make your opinion knowns to your elected representatives in the U.S. Senate and House. While one misguided piece of legislation has been thwarted, other similar efforts are sure to follow. Secondly, at this link to a press release from the Digital Freedom Campaign, you can learn about an initiative called the ‘Digital Freedom University.’ As the news release states, the initiative is …aimed at promoting the freedom of students to participate fully in the digital revolution. The initiative seeks to expand the ability of student leaders and campus-based artists and innovators to make their voice heard in Washington, D.C., as the rights to acquire and use content in the digital age is debated. The Digital Freedom Campaign does not in any way support or condone digital piracy; they do support a balanced approach to digital rights and list as partners the American Library Association, the Electronic Frontier Foundation, and the Consumer Electronics Association, to name just a few.