Politicians just don't get it

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.
Written by Marc Wagner, Contributor

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. 

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