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
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.
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.
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 rapp.com. Comments about this article
can be posted at rapponthis .blogspot.com.