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.

Ethical Dialogue and Responsible Stewardship

This has been a very busy conference season for me, having had the opportunity to attend three student affairs conferences in a three-week period. In addition to NASPA and ACPA, I was also privileged to speak at the Caribbean Tertiary Level Personnel Association (CTLPA) meeting in Kingston, Jamaica. Participating in these meetings gave me the opportunity to compare the culture, values, and purposes of all of the groups and also to observe the similarities in our collective mission in higher education. Our common goal seems to be the preparation of students for their future as citizens of the global community, contributing members of their local community, responsible and caring family members and individuals with a sense of their own vocation and value in the world. Although the emphasis may vary from place to place, the purposes are consistent. Our profession contributes to student learning within a larger context of post-secondary education. Students in our institutions are expected to acquire academic knowledge, technical knowledge and skill as well as interpersonal and meaning making skills. All of this skill and knowledge must be balanced in student lives for any of us to consider our work successful.

It is clear that we in student affairs and services have created a profession that makes significant contributions to the education of college students as they prepare for their place in the world. This common purpose for all of us, regardless of specialty, type of institution or geographical area raises a key question for the ethics of our profession — Where is our common set of ethical standards? Why do we have several different and overlapping statements issued by the different associations to which we belong? Do our colleagues and students, people with whom we work on a daily basis, care what professional association we belong to or are they more concerned with the quality of our work and service, our ability to meet the needs of students, faculty and our institutions in our areas of expertise? It is time to deepen our dialogue on this topic.

Yankelovich (1999) identified dialogue as a missing skill in most problem solving conversations. A true dialogue has these elements: collaboration, active listening, re-examining all positions and assumptions, searching for strengths and values in others’ positions and exploring new options. It does not include voting, searching for weaknesses in other’s ideas competition or self-defense (pp. 39-40). Dialogue has three distinctive features; Equality and the absence of coercive influences, listening with empathy, and bringing assumptions into the open (pp. 42-44).

One of the key ethical concerns that all student affairs professionals must address is of responsible stewardship of resources (Fried, 2003). In a climate of fiscal constraint we are ethically obligated to use our limited resources efficiently and effectively in order to maintain the trust of all of our stakeholders. At the association level, we have a similar question — How much duplication of services and functions among associations can we afford? Does the current structure of two different umbrella associations for our profession continue to make sense or is there a possibility that a new kind of structure and relationship might improve our ability to function effectively? In informal conversations I have had with new professionals, there is a continuing question- why do we have two associations and what are the differences between them? After graduation from our preparation programs when membership costs are relatively low, few new or mid-level professionals feel able to spend the money to belong to both. In financially constrained circumstances they believe that they must choose and they are not clear about the criteria on which to make the choice. Common purposes are more obvious than historical differences. We are in a new era. As we forge a vision for the 21st century similarities are more important than differences although careful analysis will allow for consideration of both and dynamic interplay between them.

The concept of merging our two national associations is very complex and requires a great deal of dialogue. One good place to begin examining the idea of responsible stewardship and knitting our associations together might be in dialogue about ethics. We face many common ethical concerns ranging from issues of professional preparation standards and competence to questions about editorial policy and publication processes in both journals. There are debates about access, professional roles, freedom of speech and student behavior going on throughout the country. Much of our recent national discourse has been confined to dualistic ways of framing issues, particularly in the political domain. We are concerned about drawing lines between friends and enemies, knowing which side people are on. On our campuses, we should be able to conduct more sophisticated and nuanced conversations about complexity, particularly in discussion of ethics. The first step in the process of opening dialogue might be to ask what ethical issues need to be discussed within our own profession and how well do our ethical statements address them? Another step would be to raise the topic of creating communities of ethical discourse on our own campuses so that we can include our colleagues and students in the conversation and in the process of thinking about ethical dilemmas.

All of us need to be reminded that dialogues for purposes of mutual understanding are very valuable and certainly can co-exist with the occasional search for the right answer in any area from mathematics, to religion, to the definition of plagiarism. Those who have achieved higher levels of cognitive complexity as described by Kegan’s 4th position (1994) or Baxter Magolda’s level 4 (1992), should serve as role models to those who still see the world from level 2 in either of those schemes. The problems that face us as professionals, individuals, family members and global citizens certainly demand complex thinking. We can learn this level of skill and perception in conversation with each other and use it to address all kinds of ethical issues including the question about the appropriate arrangement of professional associations for the 21st century. Adversarial debates will not advance our understanding of the many issues we face including unprecedented ethical dilemmas. It is time to continue our dialogue and follow the evolving process toward increased collaboration in our profession and on our campuses.

Most dichotomies are fundamentally misleading. Simplicities are reassuring but complexities are usually more accurate. Chickens and eggs are mutually interactive. (Fried handout for student development theory course, 2003)


References

  • Baxter Magolda, M. (1992). Knowing and reasoning in college. San Francisco: Jossey-Bass.
  • Fried, J. (2003). Ethical standards and principles. In S. R. Komives, D. B. Woodard, Jr. & Associates (Eds.),Student services: A handbook for the profession. (pp. 107-127). San Francisco: Jossey-Bass.
  • Kegan, R. (1994). In over our heads: The mental demands of modern life. Cambridge, MA: Harvard University Press.
  • Yankelovich, D. (1999). The magic of dialogue: Transforming conflict into cooperation. New York: Simon & Schuster.

When does a Collegiate Newspaper Adviser have First Amendment Rights?

Freedom of the press rights of student publications were established in the late 1960’s and early 1970’s. For example, the Courts have made clear that the editorial content of student newspapers is protected by the First Amendment.Dickey v. Alabama (1967) established that the editor of the school newspaper could not be suspended for the content of an editorial criticizing the Governor of the State (Henrickson, 1999). Joyner v. Whiting (1973) set the precedent that that school official could not control the content of school newspapers unless the content falls under the narrow guidelines defining obscenity. Other decisions found that while an institution is not obligated to fund student publications, the school cannot withdraw funds because it objects to the editorial content of the student newspaper (Henrickson). As a result of these cases, public colleges and universities and some private institutions formed a separate and independent corporation for the campus newspaper and many of these student newspapers became financially self supporting entities. Usually these student publishing companies had an employee of the institution who served as the adviser to the editors of the student newspaper.

Since the establishment of incorporated student newspapers, there has been a paucity of case law on freedom of the press issues. The exception was a 1990’s case involving student fees and separation of church and state issues based on the Christian editorial content of a student publication. The Court ruled that if student fees were used to fund student publications, a publication with a content orientation as a Christian publication could not be denied funding (Henrickson; Rosenburger v. Rector and Visitors of the University of Virginia, 1992/1994).

In 2005 a new issue involving freedom of press and content emerged. This new case Lane v. Simon et al. (2005) concerns the issue of what rights under freedom of press an adviser to a student newspaper possess. The Kansas State University (KSU) had established a corporation, Student Publications Inc. (SPI), to finance and govern its student newspaper the Collegian. For the past 15 years Professor Rolland Johnson held a joint appointment as a tenured professor in the School of Journalism and a yearly renewable contract as Treasurer and Director of SPI. In his capacity as Director he served as the advisor to the editors of the Collegian. However, the student editors had complete and ultimate authority over the editorial content of the newspaper.

During the spring of 2004 some students became dissatisfied with the selection of news items covered by the Collegian. Specifically, some students claimed that the newspaper failed to adequately cover diversity and other campus issues. Meetings were held among administrators, faculty and students and a student protest demanded that Professor Johnson be removed from his position at SPI. The Chairman of the Board of SPI, without consulting the SPI Board members, sent a recommendation to the Dean of the College of Arts and Science that Mr. Johnson not be reappointed to his position at SPI. He based his recommendation on a “content analysis,” a research methodology used in the social sciences, to compare the breadth and quality of news coverage in the Collegian to six other institutions’ campus newspapers. He found that news content had fallen below standards set by both professional and campus newspapers; that sub par scope and quality of news coverage had been the case consistently over the past four years; the Collegian’s content was more like a general interest newspaper than a campus publication; and news story content had developed a culture of mediocrity when compared to other campus newspapers where the standards where much higher. He also noted that Johnson’s behavior when working with others was detrimental to SPI. The Dean by letter in May of 2004 notified Johnson that he would not be reappointed. The 2003-2004 Co-Editors of the Collegian and Johnson filed suit in the Federal District Court of Kansas claiming their First Amendment freedom of press rights had been violated. KSU filed a motion with the court asking that the case be dismissed.

The Lane court noted that “content analysis” is a social science technique typically used in mass communications with precision that “measures specific aspects and characteristics of media content.” The court noted:

In this instance, Simon compared the total bylined items, the number of news stories, the number of feature stories, the percentage of campus stories, the number of sources per story, the number of sports stories, the number of bylined opinion items, and the number of diversity items in six campus newspapers comparable to the Collegian (Lane v. Simon et al., 2005, p. 12).

The Court also noted that Johnson was dismissed because of his failure to be a role model and by fostering conflict among the newspaper staff.

The Court agreed with the University’s motion to dismiss the claim, reasoning that Professor Johnson had no control over the editorial content of the paper. Judge Robinson argued that the “content analysis” findings were a measure of the quality of the campus newspaper and not the content of specific articles in the paper. The removal of the Director of SPI did not violate the freedom of press rights of the editors of the Collegian since the editors maintained control over the editorial content of the paper. The court noted that the failure to consult the Board of SPI as outlined in its by-laws could yield a state claim by the editors. In addition, Johnson’s contract may have been breached. The court noted that such state claims were not under its jurisdiction.

Some legal scholars have raised serious questions about this decision, noting that the court’s “content analysis” position of the Collegian “had nothing to do with particular stories appearing” in the newspaper and was an error (Hoover, 2005). This could serve as the basis for an appeal of this decision. Such an argument would hinge on whether the analysis conformed to the appropriate procedure required in a content analysis. Normally this technique does not consider and comment on the content of specific stories but rather is a comparative measure of the quality and overall coverage of news item across several newspapers. If “content analysis”, as a research methodology, was conducted appropriately it is difficult to determine how such an analysis would affect the content of individual stories and editorials.

While some may argue that this case will not withstand the scrutiny of an appeal, there are some things that student affairs administrators can learn from this case:

  • Institutions and their administrators should not challenge the editorial content of student publications unless this content violates a narrowly prescribed definition of obscenity.
  • Where control of editorial content is specifically designated to the student publication editor(s), the faculty/staff adviser may not have access to claims under freedom of press.
  • Administrators need to strictly follow the proscribed procedures involved in the employment or removal of a director or adviser to a student group.
  • When student groups complain about the editorial content of student newspapers, administrators should facilitate dialogue between the parties rather than taking sides or commenting on the issue.
  • There is an attitude within the public both from the left and the right that universities are being taken over by ideologies that are intolerant of others’ views. Institutional officials need to continue to work toward a campus environment where there is a free exchange of ideas and where diversity of thought and intellectual debate is fostered, not stifled.

Issues such as this one get at the very crux of the purpose of higher education institutions, where students, faculty and staff have the freedom to inquire and investigate in search of understanding. In order to insure the freedom of inquiry, student affairs administrators need to achieve a balance between what is considered politically correct and the rights of the individual to inquire and debate freely. Promoting an environment that embraces First Amendment Rights and Academic Freedom should guide administrators in policy development and behavior.

References

  • Dickey v. Alabama, 273F. Sup. 613 (M.D. Ala. 1967).
  • Hendrickson, R. M. (1999) The Colleges, Their Constituencies and the Court (2nd Ed), Education Law Association, Dayton, OH, p. 189.
  • Hoover Eric, (2005) Federal Judge Dismisses Lawsuit by Former Newspaper Adviser at Kansas State University. The Chronicle of Higher Education: Today’s Newshttp://chronicle.com/daily/2005/06/2005061507n.htm
  • Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973).
  • Lane v. Simon et al., 2005 U.S. Dist. Lexus 11330 (D. Kan. 2005).
  • Rosenburger v. Rector and Visitors of the University of Virginia., 795 F. Supp. 176 (W.D. Va. 1992) aff’d. 18 F.3d 269(4th Cir. 1994).

Acknowledgement

As Annette Gibbs retires from the University of Virginia, and as a co-author of this column in Developments, I wanted to publicly thank her for her contributions to the column, ACPA, and the field of student affairs. Dr. Gibbs has mentored a significant number of professionals in the field including me. Like others, I have benefited from her knowledge, scholarship, intellectual capacity and integrity. I am sure those who have had the opportunity to work with her join me in wishing Annette the best as she moves to a new phase in her journey.

– See more at: http://www.myacpa.org/article/when-does-collegiate-newspaper-adviser-have-first-amendment-rights#sthash.wRd5j4aN.dpuf