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Discuss“You’re the most hated person on campus!” So exclaimed a student in INFO 515, “Culture, Law and Politics of the Internet,” during one of our classes on copyright infringement. A few weeks later, another student forwarded me the link to a DC++ posting. Its concluding paragraph starts with the statement “Fire Mitrano.”
It takes courage to disclose such negative sentiments to the very person who is going to give you a final grade in a four- credit course. Nonetheless, those leadership qualities are of the kind required by all of us — students, faculty and administrators — to address the critical issues surrounding the politics of digital copyright.
Our Founding Fathers conceived of copyright as a policy to balance between innovation and incentive, not property as we think of a piece of land or ownership of a car. As policy it had a direct connection to both the politics of a democratic republic and the economy of a free market society. A democratic republic requires an informed citizenry to discharge their obligations as members of a participatory democracy. Creators require culture in the public domain to stimulate discoveries and useful arts. The late 20th-century shift from a production to an information economy has spurred an expansion of the scope, terms and damages for infringement in copyright law, changes in degree that increasingly constitute one in kind from a balanced policy to a legal property regime represented in the recently minted term of “intellectual property.”
As both consumers and producers of “intellectual property,” higher education stands at the crossroads of this shift. Last year the American Association of Publishers threatened to sue the University for alleged copyright infringement occurring in e-Reserves and some course info sites. Although the parties have resolved the specific points of the proposed complaint the larger concern about whether the faculty can achieve their teaching missions under the restraints of current copyright law remains a critical one for all of higher education.
In April of this year Cornell University received 18 “pre-settlement letters” from the Recording Association of America. University administration decided to pass that information to the student users whose Internet Protocol addresses were cited in the letters in order to provide the students with options. Just past the “20 day” deadline that the RIAA set, the University received 15 subpoenas for the identity of the users who evidently did not settle. The cost also went up by $1,000, from $3,000 to $4,000, according to the Chronicle of Higher Education.
Then in July during Senate debate on the reauthorization of the Higher Education Act — the legislation for federally funded financial aid to students –— Senator Harry Reid (D-NV) proposed an amendment written by the entertainment industry. The Reid Amendment would provide the Secretary of Education the authority to require the “top 25” institutions that receive Digital Millennium Copyright Notices to install technological filtering systems on their campus networks. These systems would either (attempt to) throttle down peer to peer traffic or “deep six” specific files identified through a monitoring system that matches the “fingerprints” of specific files.
An over-the-weekend grassroots campaign against that amendment, instigated largely by information technology professionals all across the country, prompted Senator Reid to withdraw it. Thanks to the powerful lobbying efforts of the entertainment industry, members of the Committee on Education and Labor have resurrected it in the House. I, for one, could hardly imagine that higher education could operate autonomously in pursuit of its missions if the entertainment industry continues to get its way with Congress about this matter as it did in the late 1990’s with the Electronic Theft Act of 1997, the Digital Millennium Copyright Act and Copyright Term Extension Acts of 1998.
It is time for us all, administrators, faculty and students to stop content owners from dividing us and recognize how much we have in common on this issue. Higher education leaders across the country must begin to stand up to bullying content owners in Congress. We should also be prepared to support any college or university that faces fair use legal challenges. We might also do an assessment of network flow logs and retain only as much information as is required for full security, maintenance and business operations, thus minimizing the amount of information available through subpoenas.
Faculty might consider creating a concentration in “intellectual property” pooling from the resources of the Law School, Information Science, the Law and Society or Ethics and Public Policy akin to what previously has been done for African-American, Latino, Gender and LGBT Studies. Also the Law School Clinic might consider representation for copyright defendants.
Finally, students should come out of the infringement closet. Challenge yourselves by organizing politically to reshape public opinion on intellectual property in our information age, boycott content owners who sue customers, change laws to reflect the original balance of innovation and incentive and build new business models with Internet technologies. Become part of a movement to create social norms that eschew the cognitive dissonance that comes with wanting to be an upstanding member of the Cornell community and American society and yet act illegally and against your own interests hidden behind the relative ease and perceived anonymity of technology. In short, realize both the privileges and obligations of citizenship and embrace the civil rights issue of your generation.
Tracy Mitrano law ’95 is the director of information technology policy and computer policy and law programs for the Office of Information Technologies. Guest Room appears periodically.