Since its inception, copyright law has always recognized a certain amount of flexibility not only for purposes of teaching but also for purposes of comment and criticism and for news reporting. Since the 1970's, a "fair use" doctrine has been codified into U.S. Copyright law to include not only reproduction of printed material but also, thanks to the emergence of easily accessible audio recording technology, the reproduction of audio materials for these same purposes. [See U.S. Code, Title 17, section 107.]
Fair use is determined by the following criteria:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Meeting these criteria in a classroom environment is pretty straightforward, but what about elsewhere in the university?
In the 1970's many of us on college campuses across America (yours truly included) routinely used cassette recording as a means to distribute the cost of record albums across multiple individuals. Technically, we were operating outside the terms of "fair use" but the extent of the economic impact on copyright holders was minimal. It was no excuse but our ignorance -- and the low impact of our actions -- protected us. It was only later in life that we appreciated the scope of our actions.
Today, the story is quite different -- books are stored in electronic form in university libraries, CDs represent the gold standard of audio reproduction, and audio cassettes have been replaced by MP3 files. To be fair, most university libraries are conscientious about protecting the copyrights of the materials, both printed and electronic, which have been placed in their care but that is not necessarily so with faculty and students.
The technology of the 1970s was imperfect and reproductions of any kind were inferior to the original. Copies of copies quickly became unusable -- dramatically limiting the commercial impact of wholesale reproduction of copyrighted materials. Today, the copy is totally indistinguishable from the original and wholesale commercial re-distribution of these materials is available to anyone with a computer.
In reality, most participants don't even realize that they are stealing -- and not just from some nameless corporation but from their favorite authors and artists -- the people who's work they value the most are the one's most affected by this 'casual pilfering'.
So what does that mean to us -- working in IT for an educational institution?
Ask any university IT department about their biggest challenge and you will probably be told it is the consumption of network bandwidth by music-sharing programs. These programs (more correctly known as peer-to-peer file sharing programs) are legal when not being used to re-distribute copyrighted material. Unfortunately, despite their disclaimers to the contrary, many providers of these programs encourage this illicit use -- despite the potential consequences to their audience. (Yet, they are doing a very good job of limiting their own legal exposure. Go figure.)
Like many of us in our youth, the typical college student assumes that if it is easily available, it must be legal. Right? WRONG. So what can your institution do to minimize the risk, to itself and its students from copyright infringement?
- Educate your students and faculty about exactly what constitutes "fair use" of copyright and what does not. This may be more difficult than it sounds. The issues are subtle and the benefits of peer-to-peer music sharing are alluring to college students. Faculty are less vulnerable as they are more broadly protected under "fair use" and less likely to spend their time sharing music with strangers on the Internet.
- Establish rules of computing conduct and enforce them as you would any other code of ethics on your campus. Engage the Dean of students in these efforts and, before you grant a student login access to your computing network, make sure they sign an agreement to abide by your computing code of conduct. This is an important step so your students have no "plausible deniability" on which to rely should there be a problem.
- Require user authentication before using any university-own workstation. Knowing who is on your network at all times is a deterrent to those with malicious intent and it provides an audit trail should the authorities issue a search warrant regarding illegal activity identified as coming from your network. Without such an audit trail, your institution could have a hard time demonstrating their best efforts to thwart illegal activity on the network.
- Lock down institutionally-owned workstations. Allowing your students to install just any software they want on university-owned workstations not only makes you liable for any copyright infringement committed with that software, it raises security issues and potentially software licensing issues. Establish procedures for faculty to request software to be deployed on institutional workstations and ask for proof of licensing before complying with any such requests. In short, know what's installed on the workstations that you own.
- Limit file-sharing traffic on your network. Legitimate uses of file-sharing need not be interrupted but high-volume traffic can be "throttled back" to avoid disrupting your educational mission just so your students can illegally share copyrighted material.
- If practical, provide your student housing with its own connection to the commodity Internet. By keeping most of this traffic on student-owned computers, you will further reduce the impact of traffic on your administrative and academic network but it will not mitigate your liability if you don't take other actions to thwart illegal activity on your network.
Each of these points offers your IT department a great deal more than just protection against copyright infringement. Each of these 'best practices' helps keep your academic computing network safe and secure. The ability to isolate, identify and restrict possible copyright infringement is simply a bonus.
Unfortunately, the future doesn't look bright for the doctrine of "fair use" ... If you regularly read ZDNet, you are acutely aware of the digital-rights-management (DRM) debates going on today. Rampant abuse of existing "fair use" provisions -- leading to the widespread distribution of perfect (but illegal) copies of copyrighted digital materials have lead to sweeping legislation.
This legislation strongly favors publishers, not consumers (and not even artists and authors), but it is those institutions who rely on "fair use" in fulfilling their mission that will be crippled. Not only educational institutions of all types but any interest who has relied on the "fair use" provisions (from section 107, " ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research ... "
To what extent DRM might be used to restrict academic freedom (let alone the other political freedoms we enjoy) remains to be seen.