Friday’s bad news

UPDATE — What a difference a weekend makes! According to the Chronicle of Higher Education today (Wednesday), Senator Reid has withdrawn the proposed amendment after intense lobbying from the high ed. community. The issue, of course, has not gone away, and lawmakers seem determined to continue to pressure universities as if they were the primary source of this problem, which they are not. But at least this very bad idea has been abandoned for now.

The down side of the news on Friday was an announcement, and an urgent appeal for action, from EDUCAUSE, about the intention of Senator Harry Reid to offer an amendment to the Higher Education Reauthorization Act that would put a grossly unfair burden on a few universities to address illegal file sharing; a burden no other online service provider would share.

Senator Reid’s amendment (there is a report on it here from the Chronicle of Higher Education) would require that 25 institutions identified each year by the music industry to the Secretary of Education, based on the number of copyright infringement notices sent to those schools, adopt a “technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.” Now, everyone agrees that sharing copyright protected music and video over P2P networks is illegal and ought to be discouraged, but this amendment is clearly the wrong way to approach the problem.

First, colleges and universities are only a small part of the file-sharing problem. Even the content industries admit that nearly 3/4 of all file sharing takes place over commercial networks not affiliated with higher education. In fact, the higher education community is the only major group of online service providers that is now actively taking steps to reduce file-sharing on its networks. Why punish only those who are trying to prevent the activity and ignore the commercial providers? Why do the content industries continue to target higher ed and ignore AOL and Viacom, where the problem is much greater?

Second, the Secretary of Education is supposed to identify the 25 schools from information provided by the content industries. Thus a major financial burden could be created for institutions that have little way to anticipate being targeted or defend themselves from random selection. These notices are often inaccurate, and just counting them up and picking out the top recipients is and unfair, and unfunded, mandate that will do little to actually address the problem.

Finally, this proposal continues the trend in Congress of attempting to apply technological solutions to infringement problems. Unfortunately, every technological barrier quickly becomes a challenge that some programming whiz wants to defeat. The barriers fall as quickly as they are erected. So schools would be required to spend lots of money to implement solutions that can not realistically be expected to work for very long. These problems must be addressed with long-term market solutions, not with technological band-aids.

You can read a letter from EDUCAUSE about the proposed amendment here, and an article from Inside Higher Ed here. As the article notes, this amendment has not been offered yet, and the situation is “fluid.” So perhaps good sense will prevail on this issue, and troubling news can become an opportunity to educate our Congressman on the real facts about file sharing.