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The Fine Print

Congress has a pretty solid track record of rolling over for Big Media, especially over the last 20 or so years, as BM tries to counter the threat of digital media and the Internet to its hegemony over most everything you see and hear. Certainly, most members of Congress understand little about copyright law and even less about new technologies and the Internet; what they do understand, however, is the constant inflow of checks from BM lobbyists to support laws that increase BM’s profitability and ever-increasing stranglehold over the ownership and flow of information.

So it was disappointing, but not particularly surprising, to see a bill winding through the House of Representatives that would mandate that every college in the country become copyright cops, and even worse, mass-purchasers of music services that most students neither need nor want.

Tacked onto a 700-page education bill were provisions that would require colleges to evaluate “technology-based deterrents” to file-sharing by their students. That is, colleges would be required to police the activities of their students on the Internet to be sure that the students aren’t moving stuff around that might, just might, be the copyrighted property of Big Media.

There are a bunch of issues here. For one, as a legal matter, it is the copyright owner’s responsibility to police its copyrights. In that way, a lot of stuff that either has no protection or that a copyright owner doesn’t care to protect can still move around freely. A copyright owner may want to allow free distribution of some stuff and to protect the rest. To force a third party, like a college, to be the copyright cop will result in a true baby-with-the-bathwater situation where massive amounts of otherwise perfectly legal activity will be wrongly outlawed. Even worse, the only way to effectively police file- sharing activity is to snoop into what’s being shared, i.e. to actually observe the online activities of the students. This raises massive privacy concerns, but of course personal privacy is a trivial matter to Congress, what with all of these Big Media companies complaining about lost profits and eroding market share.

Maybe even worse than this is the provision in the bill that colleges “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property,” which is code for forcing the colleges to provide students free access to a handful of commercial downloading sites, like Ruckus and the “new” Napster. A number of colleges have already tried this, offering these services for free or a token payment (the rest being paid for by student activity fees) with underwhelming results. Why? Well, to my knowledge, the services offered to students allow only streaming of music over the Internet, and to the extent downloading is allowed, the restrictions on the use of this “free” music are so onerous no real music fan would seriously consider getting onboard. None of the services offered, for example, are compatible with the iPod. That’s a little problem. All of the services offered allow only temporary downloads—that is, when you leave college, your music library disappears. Oops. Why bother?

The colleges that have offered these services so far have done so voluntarily in an effort to protect their online networks from the often-crushing traffic that peer-to-peer trading causes, and as a hedge from a potential claim that the colleges are somehow aiding and abetting rampant “piracy” over their networks. But few kids want to use the services, even for free. These experiments have been largely a failure.

And now Congress is considering forcing every college in the country to subscribe to these ill-conceived music services, meaning a massive transfer of money from colleges (and their students) to Big Media, with negligible benefits to the colleges. That’s disturbing.

And what happens, under this proposed legislation, if colleges don’t comply? They lose federal funding, that’s what! This all looks depressingly similar to what happened in the ’90s, when Congress required colleges to allow military recruiters to sell their snake oil on campuses, under the threat of loss of federal funding. But at least then there was some plausible governmental purpose, like national defense.

Not so here. What this bill amounts to is a federally mandated transfer of responsibilities and money between private companies to nonprofit educational institutions, forcing colleges to do something that has nothing at all to do with their educational missions and everything to do with propping up a fetid and fundamentally corrupt industry.

—Paul Rapp

Paul Rapp is an intellectual-property lawyer with offices in Albany and Housatonic, Mass. He teaches art-and-entertainment law at Albany Law School, and regularly appears as part of the Copyright Forum on WAMC’s Vox Pop. Contact info can be found at www.paul Comments about this article can be posted at rapponthis

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