Politicians just don't get it

Politicians just don't get it

Summary: If we want to keep Washington lobbyists out of Education IT, we need to enforce our own codes of conduct with regards to copyright infringement. It is THEFT, plain and simple and if we don't pursue student misconduct ourselves, Congress will mandate solutions which will impede our educational mission for years to come.

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TOPICS: Browser
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Once again, Congress is trying to throw technology at a problem that could be fixed as simply as telling our students Thou shalt not steal! and holding them accountable when they do! 

Now eSchool News reports House bill reopens campus file-sharing battle.  Last time, it was the Senate but it appears that it has become a never ending battle between College and University leaders and politicians who are falling into lock-step behind RIAA lobbyists.  Quoting eSchool News:

In the process, higher education's relations with the entertainment industry, which has been lobbying for the requirements, have deteriorated--so much so that the situation could jeopardize continuing efforts to resolve campus-based electronic copying issues on mutually acceptable terms.

All this is on the heals of the $222,000 award to the recording industry from a Minnesota woman found guilty of sharing copyrighted music on-line.  (See "Illegal downloader ordered to pay $222K".)  I have no idea exactly how guiltythis hapless woman is but a quick perusal of the article reveals that lurking somewhere between her computer and the computer of the person(s) that copied her music is Kazaa, a peer-to-peer vendor who is quite happy to do so, apparently free from legal responsibility for their complicity in this theft. 

She maintains her innocence, and since she has two sons (11 and 13), their involvement in the matter is entirely plausible.  Now, if she knowingly violated copyrights, she deserves to be penalized for doing so but, at one time, liability fell to any "deep pockets" which could be connected to the activity.  Why in the world is Kazaa not responsible, at least in part, for this woman being able to take part (perhaps unwittingly so) in this illegal activity?

Why should they, you say?  After all, she had a choice! 

Good question.  Have you been to the Kazaa site lately?  Right there, prominently display in the middle of the screen: "Fast, Safe & Free".  How many consumers might also assume that means that it is legal to use Kazaa however they wish?  How many kids as young as hers might equally not even take the time to think about whether mom could get into trouble because they download something which seems legitimate and allows them to share their music with their friends.  (Yes, I am assuming facts not in evidence but these are plausible assumptions -- if not in the case of the Minnesota woman, certainly in homes all over America!) 

We are used to the idea that the intent to break the law counts for something in litigation.  Well, not necessarily.  Of course, Kazaa has their disclaimer displayed prominently at the bottom of their home page:

Copyright: Sharman Networks Ltd does not condone activities and actions that breach the rights of copyright owners. As a Kazaa user you have agreed to abide by the End User License Agreement and it is your responsibility to obey all laws governing copyright in each country.

Their disclaimer makes it perfectly clear ... you must abide by their EULA.  Right?  When was the last time you took the time to read the disclaimer at the bottom of a web page -- let alone an End user License Agreement before you accepted it out of hand? 

Most people can't even decipher the legalese found in most EULAs! 

Oh, and what about Fair Use? 

Section 107, Chapter 1, Title 17, of the U.S. Code reads:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The defendant from Minnesota gets no Fair Use protection here but when we talk about colleges and universities (the subject of this piece after all), we certainly have been (and presumably still are) protected under the Fair Use doctrine reflected above in U.S.C. 17, Chap. 1, Sect. 107. 

What happens if colleges and universities are forced to install peer-to-peer counter-measures to keep their students from stealing music?  What impact will such measures have on the academic freedom we have all come to expect on our campuses.  What happens to institutional collaboration if we are not allowed to permit peer-to-peer activity beyond our border routers? 

Should institutions act with all due diligence to mitigate the use of their networks for illegal purposes?  Yes, and nearly all schools have clearly laid out codes of conduct which consider any illegal activity to be grounds for expulsion.   Should schools enforce those codes of conduct when it comes to theft -- whether its copyrighted music or textbooks from the library?  Of course they should.  Nevertheless, Congress has no business telling colleges and universities (or any school for that matter) that they must adopt draconian measures which hamper or impede their primary mission of education and research. 

Topic: Browser

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9 comments
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  • s/stealing music/transferring files/

    [i]What happens if colleges and universities are forced to install peer-to-peer counter-measures to keep their students from stealing music?[/i]

    There is no way to distinguish between a student sending a draft paper for review and one sending a pirated audio file if they are encrypted -- and we encourage encryption (e.g. SSL) for more and more traffic every day as a security measure.

    Bottom line: if schools have an overriding obligation to prevent students from transferring copyrighted material amongst themselves, the only way to do it is to clamp down and stop them communicating with each other. Do keep in mind that that draft paper is also a copyrighted work; [u]everything[/u] is, after all.

    Pick your poison.
    Yagotta B. Kidding
    • Exactly my point ...

      If the government mandates draconian measures to attempt to curb stealing of music and movies (all at the behest of lobbyists), our ability to provide tools for file sharing for legitimate academic purposes could be severely impeded.

      If instead, Education IT is proactive in enforcing the institution's code of student conduct and develops tools in-house to meet the academic needs of its students and it's faculty, the likelihood of students becoming caught in an RIAA 'sting' operation is greatly reduced.
      M Wagner
  • Not an isolated problem

    Since this is an ed blog and I was a teacher, I'll be nit picky - that's "on the heels" not "heals" although I'm sure the judgement was healing for someone ;-)

    Unfortunately the problem is not limited to students but spread across a number of demographics. This says more about students and educational institutions being an easy soft target than it does about any attempts to solve the problem.

    In the end, the problem can only be solved by the authors of information - whether it be video, text graphics etc - making it easily available at a reasonable price. If a Music CD costs over $20 - what does the actual creator get for their troubles? - very little as the bulk of this money goes to feed last century's exorbitant management, representation and distribution costs. The success of such proprietary stores as iTunes indicates that there are a huge number of people who would pay a reasonable fee for the privilege - if they only didn't have to use Apple.

    As to the theft. It's really receiving stolen property rather than theft as the media producers would like us to believe. Yes. it's still wrong and illegal, but very few actually digitise material for public distribution.

    When it comes to TV and movies, you are generally watching a low quality version of the original which in a number of countries is not available to you on broadcast or cable. Should you be denied this information? You will only be able to get it if it is available on DVD in your country, which it may not be.

    When any music or video or text is available by simply using a peer to peer network, I'd be willing to pay a small amount for the privilege of using it - as would hundreds of millions of other people. Now Amazon and a number of other providers are starting to make these downloads available.

    There's also avoiding the malware that is inevitably attached to illegal software downloads. Happily, vendors like Valve with their Steam delivery system are starting to realise that reasonable prices for games to millions of people is better than exorbitant prices for a restricted audience (with the inevitable illegal downloads)

    In the end it depends on whether you believe people are essentially honest or essentially dishonest. I believe once producers stop trying to charge exorbitant prices based on last century's business models, people will be more than happy to pay for the privilege.

    Finally, you should never make laws you can't enforce and prosecuting one person when millions go free is an exercise in futility.
    tonymcs@...
    • You make several good points.

      Unfortunately, young undiscovered talent often signs their rights away to their own music in order to get it published. (Even Paul McCartney does not own much of his early work.

      Further, the music industry still doesn't see the value of exploiting the very same technology to reduce their own distribution costs -- which would allow them to charge a more reasonable fee for individual tracks.

      The iTunes model does indeed demonstrate that people will pay a reasonable fee for individual tracks -- yet some in the music industy are unhappy because Apple will not allow them to 'jack up' the price on the most popular tracks.

      Others in the industry are beginning to accept the iTunes model as fair and are exploiting it to offer DRM-free material at higher bit rates for pennies more.

      The technology is there to be exploited, legally or illegally, and it WILL BE exploited. The RIAA needs to learn the old adage "If you can't beat them, join them!"
      M Wagner
  • Two thoughts.

    Question one: Could Kazaa be considered to be contributing to the delinquency of minors? Yes, I understand the Eula but I'm wondering if there is any effort to screen minors and if not should Kazaa and it's ilk not be held to a tougher standard since it is patently unrealistic to expect kids to read understand and comply with standard Eula???s. Of course that could be said of a lot of software...

    Question two: What school has ever kicked a kid out for plagiarizing or copying copyrighted work? It is possible that there are some but I have never heard of one. I have seen lots of such examples ignored and even defended by teachers and staff. (Among other things) I wonder if anyone will ever bring suit to a school district or individuals in a school district for being party or to such copyright infringement. I'll bet that would stop change the staffs "not a problem" attitude real fast.
    Of course in my city the cops won't prosecute people who fill up their tanks and drive off without paying. The cop???s position is that since the attendant unlocked it without them paying 1st it's the gas stations fault. Maybe the copyright infringement problem is indicative of a larger societal problem.
    bernalillo
  • RE: Politicians just don't get it

    Politicians DO get it. They are able to accept certain "gifts" such as campaign contributions from the RIAA lobbyists. To them it has nothing to do with "stealing" it's just business....it's money in the bank.
    baylors
  • Too many just don't get it

    The purpose of the Internet is to provide a medium to enhance communication by the sharing of data and information.

    Current copyright law is adverse to that purpose.

    The fact of the matter is that most music and video is too expensive when sold through normal retail methods; and definately not customer friendly when shopping for it. All customers deserve to see (or hear) the goods they are purchasing before they purchase it, or should receive a money-back guarrantee. Neither the music, nor the video industry would dare provide this kind of guarrantee.

    Studies have shown that if you reduce the end cost of an item that it eventually becomes ineffective and unprofitable to pirate or black market. If that's below the cost of production and distribution, then that item disappears from the market (justifiably). What record labels have historically done, and in most cases continue to do, is set an ARTIFICIALLY high cost to the customer, which encourages piracy. This is especially evident with Microsoft products - the higher the price, the more piracy that occurs. Amazingly enough, they still make record profits.

    What's more interesting, and justifies the position that music and video is overpriced, are the sites that allow downloading of songs for a low (although artificially set) price, or even for "free", where the downloader pays whatever they think the value of the song is. These sites are making MORE money than they estimated they would under traditional record marketing.

    So the problem really isn't about profit as the record and video industry claims, but about control. Recording and Video industry managers are control freaks of the worst kind. And I use the word freak freely; anyone who treats their customers, and product producers (i.e. the artists) with the distain they do, deserves that sort of label (my apologies to the VERY few who don't fit that description, you're the rare breed).
    Dr_Zinj
  • Academians Just Don't Get It

    Disclaimer: I'm one of those "politicians" and have also spent the past 20+ years working in IT.

    This issue is not complex. Current laws should be obeyed/enforced, until they are repealed/replaced.

    It's illegal to copy and redistribute almost all commercially produced music, video or software. When you have a bunch of elitist academics tacitly supporting the theft of copyrighted materials and universities more interested in promoting their football teams than civics/ethics, you wind up with the situation you have now.

    Copyright holders see as much chance of voluntary compliance or enforcement on college campuses as they see for underage drinking by the same irresponsible, whelps who are all to glad to break copyright law if they "feel" like it. If they saw mandatory ethics and civics classes being taught, as a apposed to diversity training and Marxism 101, perhaps they would be more willing to take a less aggressive approach to the problem.

    It is my opinion that most of the knowledge worth knowing has little or nothing to do with popular culture. Saying that keeping the miscreants from Kazaa and other P-2-P tools will slow down or stifle true academic pursuits or learning is a disingenuous red herring.

    If people want copyright laws changed, they should get involved in the political process. Students, try writing (not email, not text message) your elected representative and in complete sentences lay out a well reasoned position on why you think current copyright laws need to be changed and what you think they should be. "Teachers," get off your fat, tenured buts and teach these kids how to be productive, law-abiding citizens and how to work within the system to effect positive change!
    John Westra
    • You don't say

      What kind of a "politician" you are, but judging by the tone of your comments, I daresay you wouldn't be a politician long enough to say "I am" if you were honest enough to declare your position before you were elected (you were elected, eh?).

      You seem to think that the general public is too stupid to know what is happening. Many of them have checked up on the "lobbying" (which is nothing more than legalized bribery), and "earmarks" (which is nothing more than outright theft and misappropriation of public funds), along with the big fat raises, bonuses, and expenses accounts politicians appropriate themselves while the rest of the country is struggling and going broke. Your "change the law" BS is a big farce. You have seen the polls here since you've been haunting ZDNet. The citizens would change the law in a heartbeat if it were in their power, but you know it's the greedy politicians who take the bribes from the greedy corporations who make the laws, and they aren't about to change them as long as the money (bribes) are rolling in, no matter what the citizens say.

      My wish for you is that you be confined with the RIAA and such riff-raff and not be allowed to speak to honest people for the rest of your life term.
      Ole Man