Colleges, Courts, Congress, and Napster: Student Affairs’ Role in Reducing Illegal Copyright Piracy

Jason E. Lane
Assistant Professor
University of North Dakota

Colleges and universities remain at the epicenter of the file sharing movement, and thus at the heart of concerns regarding copyright infringement and piracy. College students created file sharing software such as Napster and i2hub. Postsecondary institutions number among the most networked organizations in the world and provide access to millions of colleges students, with limited oversight as to how students use these networks. Further, college students are arguably one of the most egregious groups of current copyright violators in the United States. In 2002 downloading music from the internet was an almost exclusively illegal activity as legal alternatives were only in their infancy. A 2002 study by Pew’s Internet and American Life Project found that college students had a significantly higher propensity for downloading music from the internet than any other group of internet users (Jones, 2002).

Recent legal and political developments suggest that file sharing on college campuses remains a primary issue of concern for many of higher education’s external stakeholders. Campus based piracy has been the focus of Congressional hearings since Napster first attracted public attention. In 2002 higher education and recording industry officials formed the Joint Committee of the Higher Education and Entertainment Communities “as a way to help combat copyright piracy on campuses nationwide” (Boliek, 2005). In one of the more aggressive moves by Congress, Reps. Lamar Smith (R, TX) and Howard Berman (D, CA), indicated that they would request that the General Accounting Office (GAO) investigate college and university anti-piracy policies and provide a “ranking” [check] of their effectiveness. The signals from Congress suggest a growing external desire for colleges to take responsibility for the illicit uses of their campus networks.

Interestingly, such expectations extend far beyond requirements of federal statutes, which protect universities from being held liable for activities engaged in by users of their networks, so long as the university abides by a set of minimal reporting, monitoring, and educative requirements (see Hawke, 2004; Hendrickson, 2004; and Lane & Hendrickson, in press for detailed discussions of institutional safe harbor requirements). However, some universities have begun to set expectations for institutions by engaging in high profile activities such as partnering with providers of legal, digital downloads of music. Pennsylvania State University began the movement in 2003 by partnering with Napster and as of September 2005, nearly 70 institutions had entered into similar partnerships. Another preventive measure recently attracting media attention is the University of Florida’s controversial filtering software: Icarus. UF officials attest to the software eliminating a vast majority of illegal file sharing on their networks, but critics believe the software unfairly restricts students’ privacy and the “student newspaper referred to Icarus as ‘invasive’ and ‘evil’” (Read, 2005b).

The battle over campus-based internet privacy is not only being waged in Congressional hearing rooms, but also in the hallowed halls of the federal judiciary. Lawsuits and subpoenas, including the thousands filed by the Recording Industry Association of American (RIAA) and the Movie Picture Association of America (MPAA) against individual users, initially garnered a great deal of attention from the media and, as of January 2005, resulted in the identification of approximately 260 potential copyright infringers on 85 campuses (Read, 2005a).

Additionally, the Supreme Court’s recent decision in Metro-Goldwyn-Mayer Studios, Inc. et al. [MGM] v. Grokster Ltd, et al. (2005) brought additional public scrutiny to the file sharing debate. In this case, a group of copyright holders filed suit against companies that distribute free peer-to-peer [P2P] software (such as Morpheus and KaZaA). P2P software allows users to connect directly to each other’s computers to search for and download digital files such as documents, music, and movies. Evidence suggested that billions of files were transmitted across these networks each day and that most users of the software engaged in downloading illegal versions of copyrighted files. MGM and other copyright holders sought damages from these companies believing them to be liable for enabling the illegal activity. The Court acknowledged that the decentralized nature of the networks prevented the distributor from direct monitoring of the network and that the software could be used for non-infringing activity. However, the distributors of the software could be held liable for the illegal use of their software as they profited from the illegal activity on their networks and knowingly positioned themselves as alternatives to Napster, the original file sharing network. Such activities, the Court decided, indicated the distributors intended the software to be used for illegal purposes. The Court determined that many of the distributors of software designed for file sharing could be held liable for the copyright infringing activity engaged in by the users of the software.

Other than drawing attention to the issue of copyright violations and campus-based piracy, what is the meaning for student affairs practitioners? While the MGM v. Grokster (2005) has for the moment limited the availability of P2P software, the case has little direct legal impact on colleges and universities. Students do use campus networks to engage in infringing activities, but colleges and universities do not profit from the illegal behavior nor were the networks created to encourage illegal file sharing. As such, college and university legal liability does not necessarily increase due to this ruling. However, it does not mean that stakeholders will not expect aggressive institutional responses to piracy. Already, many campuses across the nation are assuming more active roles in confronting and preventing infringing activities.

While college and university legal requirements are limited, the issue raises a number of questions regarding the educational and ethical requirements of an institution. If there is a major outbreak of illegal activity on campus, how should a campus respond? What if there were some questions as to students’ awareness about the legality of their actions? What obligations do colleges and universities have toward developing good citizens and ethical leaders? As Rep. Lamar Smith stated in his opening remarks at a recent Congressional sub-committee hearing, “Universities have recognized that part of their educational mission is not only centered on turning out architects, lawyers, nurses, musicians, and economists. Their mission also includes creating well-rounded individuals with respect for others and the laws of our country.” If one believes the latter part of Smith’s statement to be true, then universities have an obligation not only to provide legal alternatives, but also to educate students about copyright law and the implications of their illegal activities.

Institutional responses garnering the most media attention are technological based such as making legal alternatives available to students and aggressively monitoring network activity; yet the most important responses fall to student affairs practitioners. While the aforementioned programs may change student behavior, they do not necessarily alter the mindset or moral development of students (Lane & Healy, 2005). One of the requirements for universities to be eligible for legal protection from liability is educating students about copyright law. While compliance could possibly be achieved with passive activities such as posting of flyers or inclusion of an informational statement in the student handbook, many institutions are viewing the educational requirement as an ethical responsibility and implementing more active educational measures. Some institutions make students complete a module and pass a quiz about copyright law before issuing them an e-mail ID and network access account. Others are supplementing their orientation activities with discussions of copyright law and appropriate use of campus networks, sharing time with such topics as appropriate alcohol use and campus safety.

In many ways, student governance organizations such as Student Government and Residence Hall Associations are also being included as key players in the development of institutional responses. As colleges and universities debate the provision of legal music and movie downloading services, campus administrators look to these organizations for support. In some cases, these organizations are being asked to approve fee increases to subsidize the expenses associated with offering services such as Napster, Cdigix, and Ruckus. As organizational advisors, it is important to be aware of the issues involved in the file sharing debate and help students process through the associated array of ethical grey areas.

Unlike some other issues where the law provides a clear path for institutions to follow, the legal components of the file sharing debate open the door for institutions to consider their obligations toward the development of the “well-rounded individual.” Should institutions merely provide legal alternatives to downloading? Without concurrent educational experiences, will students understand the legal and ethical concerns surrounding copyright violations? Will they return to illegal activity when the institution stops subsidizing the legal access to online music? As institutions develop responses to online piracy, administrators should consider more than simply the legal requirements, but also the responsibility they have for developing good citizens.

Brief Points for Administrative Contemplation

  • Become familiar with the legal requirements for educational institutions. Protect institutions from legal liability that could be incurred due to activity engaged in by individual users.
  • When developing institutional responses to campus-based digital piracy, consider the ethical and developmental responsibilities of educational organizations. Should the institution’s response be solely about altering illegal behavior or about developing ethical decision-makers and good citizens?
  • What role should organizations such as student government and the residence hall association play in creating the institutional response? Consulting with members of these groups could give you key insights about students’ current behavior and possible effectiveness of proposed responses. In the digital world, users’ trends and behaviors can change very quickly and students are often aware of these changes before staff and administrators.
  • Consider the possible precedents institutional responses may create. How far is the institution willing to go to monitor and alter student behavior? Will or should the same efforts be applied to other illegal or controversial student behavior?

References

  • Boliek, B. (2005, Sept. 22). Colleges offer legit downloads. Washington Post. Accessed on October 3, 2005 from http://www.washingtonpost.com.
  • Hendrickson, R.M. (2004, summer). Students’ downloading of music creates legal issues. ACPA Developments. Accessed on October 4, 2005 fromhttp://www.myacpa.org/pub/developments/archives/2005/summer/developments.cfm?content=legal.
  • Jones, S. (2002, September 15). The Internet goes to college: How students are living in the future with today’s technology. Washington, DC: Pew Internet and American Life Project. Retrieved January 15, 2005, fromhttp://www.pewInternet.org
  • Lane, J.E. & Healy, M.A. (In Press). File sharing, Napster, and institutional responses: Educative, developmental, or responsive policy? NASPA Journal.
  • Lane, J.E., & Hendrickson, R. M. (In Press). Digital copyrights and student file sharing: Educational responsibilities and legal liability for schools, colleges, and universities.West Education Law Reporter.
  • Metro-Goldwyn-Mayer Studios, Inc. et al. v. Grokster Ltd., et al. 545 U.S. (2005).
  • Hawke, C. (2004). The P2P file sharing controversy: Should colleges be involved? (184 Ed. Law Rep. 681).
  • Read, B. (2005a, January 28). Is there a pattern to the music industry’s file sharing lawsuits? The Chronicle of Higher Education, p. A39.
  • Read, B. (2005b, September 23). Lawmakers will seek a federal study of colleges’ success at stopping file swapping. The Chronicle of Higher Education. Accessed October 3, 2005 from http://chronicle.com.

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