In July, higher education institutions receiving federal funds must comply with provisions in the 2008 Higher Education Opportunity Act (HEOA), which, among other things, will require solutions to illegal file sharing of copyrighted works over peer-to-peer networks.
Compliance includes written plans covering communications with faculty, staff and students, implementing technology-based deterrents and periodic evaluation of effectiveness of strategies and methods.
The issues of file sharing and copyright put colleges and universities in the center of a complex and far-reaching debate that touches upon: intellectual property; legislative and legal inquiries; responding to “take-down notices” from copyright holders; the freedom to pursue research; monitoring of student, faculty and staff behavior; and implementation of new compliance technologies.
Is there a risk if institutions do not comply? The answer is not entirely clear from the regulations. However, we can speculate, in worst case scenarios, a college or university could lose federal funding, or perhaps suffer embarrassment when receiving a high number of take-down notices. Just as important, however, are the legal and ethical concerns involved in addressing the behavior of those engaged in illegal downloading.
Putting such issues into context raises several comparative questions. How do institutions address theft from the bookstore? How should plagiarism be addressed? How should professors react when textbooks are downloaded for free off the Internet? Is the theft of music or movies via file sharing networks a substantively different concern?
When institutions begin their compliance planning, they first must understand the primary requirements of the regulations, which include:
- annual communication with students, faculty and staff regarding the potential consequences of violating copyright law and a review of institutional policies on file sharing of copyrighted materials
- implementing one or more technology-based deterrents to effectively combat unauthorized distribution of copyrighted works over peer-to-peer networks
- the notion that students and others are entitled to be offered legal alternatives (ITunes, for example)
- measuring and reporting how well an institution is addressing the problems
The good news is that colleges and universities are afforded significant latitude in tailoring a specific plan, as long as the plan meets HEOA requirements. A guiding principal is, of course, that a plan must be “effective,” in other words, it must actually address and reduce illegal peer-to-peer file sharing on campus.
The regulations do not define how institutions should communicate with students and employees, nor do they dictate specific technology-based deterrents, although several are mentioned which are thought to be effective. Colleges and universities are also given the perogative to choose metrics measuring the effectiveness of plans and are free to decide when periodic reviews are required.
One of the toughest issues will be implementing technology-based deterrents. The regulations suggest devices such as bandwidth shapers, traffic monitors and other blocking approaches, which include deep packet inspection products used to limit or allocate bandwidth. Other commercial items target illegal copyrighted content, automate student communication or enable institutions to implement a “three-strikes approach” for potential violators. Most institutions will resist the notion of playing “internet cop” and will simply serve notice to users and pass on implementation costs in the form of fees.
Institutions will face additional challenges as they try to navigate yet another group of complex regulations. First, institutions will have to accommodate another unfunded federal mandate. With the economy and budget cuts among the most severe in decades, and enrollments rising, where will schools find funds to implement plans and acquire technology?
Second, institutions must identify offices developing and implementing the plans as well as assigned staff. Currently, these issues cross jurisdictional territories in highly decentralized settings. Responding appropriately will require some form of centralization and control—not easy concepts to accommodate in many institutions. Solutions will require involvement of the chief academic, student, financial and CIO officers, as well as legal (to address privacy concerns and HEOA compliance requirements) and public relations professionals.
The requirement to use technology to address illegal peer-to-peer file sharing will concern faculty, especially its potential to erode academic freedom. In addressing illegal file sharing, we must safeguard legal uses of the Internet for research and academic inquiry.
Third, how will illegal activity, once identified, be addressed? Orientation programs will have to be revised and sanctions or notice requirements will have to be monitored. College and university leaders, striving to limit liability, will also want to be transparent and equitable in the implementing solutions. Untangling the legitimate uses of the Internet from those held to be illegal, will pose administrative challenges for years to come.
Of course, some institutions will be tempted to adopt a “don’t see, don’t tell, don’t respond approach,” but this is shortsighted. In the era of the ubiquitous Internet, one of our educational imperatives should be to prepare faculty, staff and students to make sound decisions based on a range of academic, legal and ethical issues involving the use of online information. Can we educate for “good digital citizenship?” If the past is any guide, the future will be complex indeed.