From Jefferson to Metallica to your Campus: Copyright Issues in Student Peer-to-Peer File Sharing 45 Lisa McHugh Cesarini and Paul Cesarini T h e J o u r Ifnature has made any one thing less gration of digital technologies into American life n a l susceptible than all others of exclusive property, has increased the relevance of this body of law o f T it is the action of the thinking power called an and made necessary a broader understanding of e c idea, which an individual may exclusively pos- its basis, how it works, and the role it plays in hn o sess as long as he keeps it to himself; but the the controversies that are shaping how faculty lo g moment it is divulged, it forces itself into the and students will use technology and informa- y S t possession of everyone, and the receiver cannot tion in the future. (p. 616) u d dispossess himself of it. Its peculiar character, ies too, is that no one possesses the less, because Although the relevance of this topic within every other possesses the whole of it. He who higher education is clear, interpretations of leg- receives an idea from me, receives instruction islation as well as court decisions have not pro- himself without lessening mine; as he who vided much clarity on the balance between fair lights his taper at mine receives light without use and copyright infringement of digital media, darkening me. regardless of whether the digital media in ques- tion was audio, video, or text. In addition, there --Thomas Jefferson, 1813 has been much disagreement within the higher education community as well as on individual When Lars Ulrich, drummer for the rock campuses about the role institutions should play group Metallica, testified before Congress about in pursuit of copyright infringers, both intention- his group's lawsuit against Napster in 2000, al and unintentional, some of whom may be the many people who followed copyright issues in institution's own students, faculty, and staff. In a the music industry were not surprised (Ulrich, 2000 press release written in response to the 2000). Ever since downloading audio files Napster lawsuit, officials at Indiana University became as easy as clicking a fewbuttons on a claimed that “ . . . technology has leaped well personal computer,charges of copyright ahead of clear legal issues” (Indiana University, infringement havebeen alleged and played out 2000) and as such, Napster would be banned in the courts. The real surprise came when from their campus network until the issue could Indiana University, Yale University, and the be further investigated. As a result, both Indiana University of Southern California also were University and Yale were dropped from the suit named in the suit for allowing students to use once that it was announced that Napster would their university computer networks to illegally be banned on those campuses as well (Carlson, downloading music files. The idea that colleges 2000). and universities could be held liable for their students' actions in this way was unsettling at Other campuses effectively banned Napster the time, and to this day,questions linger about bymeans such as packet shaping (sometimes the role higher education should playin this referred to as “traffic shaping” or “traffic engi- arena from both legal and ethical perspectives. neering”). Regardless of whether a student attempts to share vacations photos with a friend Recent courtdecisions havenot provid- or one of Metallica’s latest tracks, the informa- ed any greater insight and the legislative actions tion transmitted over the network is broken seem as informed by lobbyists as best practices down into small bundles, or “packets,” identi- on how to actually prevent and deter illegal fied by the type of data. So, by way of certain activity while allowing legitimate and potentially types of network management software, these innovative activity. Kaplin and Lee (2007) clear- packets essentiallycan be identified by their ly outline the need for students and faculty in genre: Email traffic, course management traffic, the higher education community to be informed general web surfing traffic, and peer-to-peer and proactive, both individually and collectively, (P2P) file sharing traffic. By deploying a pro- in these matters: gram such as Pack Shaper or Packeteer, an insti- tution can manage network traffic by throttling Until recently, copyright law merited little down the available bandwidth for certain types attention within the academy,but the rapid inte- of packets, while throttling up the bandwidth for an important factor when considering the legali- other types (SearchNetworking, n.d.). Packet ty of using or downloading digital files regard- 46 shaping has largely become the default method less of whether the user is on a P2P network. es for dealing with P2P file sharing in higher edu- Response to two legal suits in 1987 and 1989 di u cation, but in 2000 it was probably considered a severely restricted the definition of fair use in t S fairly new and obscure technology by end-users unpublished materials to the point of essentially y g o of such networks, and students largely greeted it not allowing any use of the work. Congress ol hn with contempt. At Bowling Green State passed the Copy Amendments Act of 1992 c Te University, for example, photocopied flyers pro- (Kaplin & Lee, 2007), which returned to the of claiming “Save Napster!” were plastered original fair use standards. al n throughout the campus, with particular emphasis r ou given to the building that housed the Hilton (2006) asserted that the most disrup- J e Information Technology Services department. tive force facing higher education relating to h T information technology is that “we live in a At the time, Napster was the only P2P file culture and society that increasingly views the sharing application, so banning that one applica- world of ideas as pure property” (p. 64). He tion (either via packet shaping or by other claims we should be very weary of this perspec- means) was a relatively simple solution. As the tive and cites John Perry Barlow's analogy of name implies P2P file sharing allows individual someone stealing your car versus someone steal- users to share files without a centralized server. ing your idea. If your car is stolen, you cannot The Napster network added another dimension: use it but if someone steals your ideas, they are Simplyput, users share files through an inter- still available for your use. The notion of “ideas mediary where the network served as a central- as property” is not a recent phenomenon in ized database (McCormick, 2006; Tech American society. In 1939, noted author and Encyclopedia, 2008). Since Napster in 2001, futurist RobertHeinlein wrote in his shortstory numerous applications have existed and used entitled Life Lineabout the confusion regarding various protocols for sharing and distributing property rights: files, making it more difficult to restrict on a campus network. Eight years later, many cam- There has grown up in the minds of certain puses still struggle with the very same issues. groups in this countrythe notion that because a man or a corporation has made a profit out of Copyright and Intellectual Property the public for a number of years, the government over the Years and the courts are charged with the duty of guar- While ultimately the issue of intellectual anteeing such profit in the future, even in the property involves legal issues of copyright, face of changing circumstances and contrary trademark, and patent laws, this discussion will public interest. This strange doctrine is not sup- focus on copyright law and the widening gap ported by statute nor common law. Neither indi- between it and advances in information and viduals nor corporations have any right to come communication technologies. An important into court and ask that the clock of history be component of copyright law affecting higher stopped, or turned back, for their private benefit. education is that of fair use, which Kaplin and (p. 21) Lee (2008) describe as “one of the most misun- derstood copyright issues” (p. 617). The notion of intellectual property and copyright issues has been a part of our legal his- According to the Copyright Act, four con- tory for as long as the United States has been a siderations are used to determine fair use: (a) country. In the United States Constitution (1787), the purpose of the use: whether it is for com- Congress is charged with the Copyright Act “to mercial or educational use, (b) the nature of the promote the progress of science and useful arts, copyrighted work, (c) how much of the work is bysecuring for limited times to authors and used in relation to the entirety of the copyright- inventors the exclusive right to their respective ed work, and (d) the impact of the use on the writings and discoveries” (art. I, § 8, cl. 8). potential market or value of the work (Kaplin & According to Kaplin and Lee (2007), the goal of Lee, 2007). Because the fair use doctrine applies the Copyright Act “simply stated, is to increase to both published and unpublished works, in knowledge” (p. 616). At first glance, this view hard copy,on the Internet, or when used as part may seem remarkably consistent with the basic of an online course (Kaplin & Lee, 2007), this is tenets of higher education, but in the instance of copyright issues it often seems at cross purposes. Internet...” (RIAA, 2003, para. 1). This quote created so much attention that it became a sort 47 The phrase in the Constitution “for limited of rally cry for many users of P2P file sharing times” has been the source of much debate as it applications as well as those students, faculty, Th e is applied to the issue of intellectual property and fair use activists who feel the enforcement J o rights and fair use of digital media. Some of copyright law has been taken to an extreme. ur n researchers believe that the timeframe for own- a l o ership should not be limited. In her 1998 Hilton (2006) believes this type of approach f T Congressional testimony, Rep. Mary Bono indi- is excessive and remarks that “as originally ec h cated that she agreed with her late husband who enacted, copyright was designed to balance the n o wanted the “term of copyright protection to last limited property rights of the author/creator with log y forever. I am informed by staff that such a the long-term rights of the public. The problem S t u change would violate the Constitution” (Bono, is that over the years, copyright has changed in d ie 1998, para. 3). In her remarks, Bono also quoted ways that have consistently increased the protec- s former actor and Recording Industry tion granted to authors without providing Association of America (RIAA) President Jack increased benefit to the public” (p. 66). It is Valenti who proposed that the term for copyright easy to see how such comments by the RIAA, protection should be “forever less one day” Bono, Valenti, and others, such as the Motion (Valenti in Bono, 1998, para. 3). Picture Association of American (MPAA), fuel this ongoing feud which, combined with the rel- While the RIAA and those it represents may ative ease and anonymity of downloading media feel entitled to the profits from their work and files, has culminated in the current situation. the ability to control howtheir work is used, manyfeel the approaches used bythe RIAA in Legal Precedence: Clear as Mud pursuit of illegal downloading are questionable The landmark copyright case related to digi- and perhaps even illegal. McCormick (2006) tal media was the Supreme Court ruling in Sony describes the scenario as “college and university Corp. of America v. Universal City Studios, Inc., students downloading digital files are perceived 464 U.S. 417 (1984). In this case, Universal City as pirates and thieves by the content industry, Studios brought suit against Sony, then a manu- while the students perceivethe recording indus- facturer of Betamax-based video cassette try as greedy philistines, and thus ignore intel- recorders (VCRs) for copyright infringement lectual property rights” (p. 682). because the VCR owners were taping movies and shows off of their televisions. According to In 2003, the RIAA began suing direct Kaplin and Lee (2007), the Supreme Court ruled infringers of copyrighted audio files, creating that Sonywas not liable for the infringement of even more ill will as well as involvement of its customers because “the recorders had sub- campuses who were requested to turn over the stantial non-infringing uses, namely timeshifting names of any students accused of violations. of television programming” (p. 620). Further, Their approach was to identify users internet the Court ruled that taping a television show and protocol (IP) addresses and send those users to viewing it later was considered fair use. their institution as the ISPs. The institution then McCormick (2006) suggested that the United forwards the pre-settlement letter to the stu- States Supreme Court should revisit its decision dent/user allowing the student to paythousands in Sonysince the precedent set by this over of dollars to avoid any further legal action broad ruling in the 1984 case is outdated,yet (Cornell, 2007). If a student does not settle, then continues to be applied. the RIAA files suit as part of a “John Doe” case, which results in a subpoena for the institu- Fast forward seventeen years to the next tion to reveal the name of the student (Cornell, significant case of copyright involving the use 2007). The RIAA's case was not helped when of media files between with A&M Records v. the following wording was posted on its website Napster,239 F.3d 2004 (9th Cir.2001). and used in many of its media messages: “No McCormick (2006) shared the district court's black flags with skull and crossbones, no cut- view of this case as: “The matter before the lasses, cannons or daggers identify today's court concerns the boundary between sharing pirates. You can't see them coming; there's no and theft, personal use and the unauthorized warning shot across your bow. …Today's pirates worldwide distribution of copyrighted music and operate not on the high sea but on the sound recordings” (p. 689). In this case, A&M Records alleged that Napster was knowingly sideration based on four factors: (a) Grokster allowing (and even encouraging) customers to was promoting itself as a means to illegally 48 illegally download audio files. In 2001, the 9th download media files, (b) Grokster targeted for- es Circuit court, based on Sony,rejected Napster's mer Napster users, (c) Grokster made no attempt di u defense, which focused on claims of fair use to install filters to prevent illegal downloading, t S (Kaplin & Lee, 2007, p. 620). The primary dif- and (d) that most of the profits that would have y g o ference between Sony and Napster was that gone to distributors who be from acts of copy- ol hn there was no further contact once Sony sold the right infringement (Kaplin & Lee, 2007). The c Te VCR to a customer, but Napster did have con- Court's decision “did more to muddle the con- of tact with its subscribers and could bar them tributory infringement 'water' than to purify it” al n from using the service at any time. According to (McCormick, 2006, p. 719). Hall (2006) agrees r u o Hall (2006), “because the centralized indexing that the Court’s decision only compounded the J e system allowed Napster to have actual knowl- confusion and went even further to say that the h T edge of specific infringement and control over Supreme Court's decision “. . . added more fuel the infringement, the court found that . . . to the fire by . . . allowing the existing Sonytest Napster was liable for contributory and vicari- to apply where a product is used to infringe but ous infringement” (p. 390). there is no evidence of intentionally inducing the infringement” (p. 392). Shortly after Napster,another case was heard in the Seventh Circuit Court of Appeals. Legislative Approaches In Aimster Copyright Litigation,334 F.3d 643, The Digital Millennium Copyright Act 645 (7th Cir.2003), the courtapplied both Sony (DMCA) of 1998 was “the foundation of an and Napsterand found that even though Aimster effortbyCongress to implement United States was used for many noninfringing uses, the pro- treaty obligations and to move the nation's copy- portion of infringing uses to noninfringing uses right law into the digital age” (DMCA report, was enough that “Aimster was required to prof- n.d.). One provision of the DMCA that applies fer evidence that its network was actually used to higher education is that of “anti-circumven- for . . . the stated noninfringing purposes to tion” clause which was an attempt to reinforce avoid contributory liability” (McCormick, 2006, copyright holders' rights bynot allowing them to p. 718). “succumb to the unique threat posed by digital technologies” (McCormick, 2006, p. 716). The next significant case took place in Although this clause was written to protect the 2004,when the 9th Circuit courtheard MGM rights of copyright holders, some in higher edu- Studios, Inc. v.Grokster,Ltd., 380 F.3d 1154 cation and those familiar with copyright issues (9th Cir.2004). Grokster was a network that viewit as a “threat to civil liberties, the free became popular after the Napsterruling essen- exchange of information, and . . . academic free- tially ended operations. Grokster's network dom” (McCormick, 2006, p. 716). merely served as a distributor for its P2P soft- ware since the files shared by its users were not Another relevant provision of the DMCA indexed in any centralized manner. In its ruling, for institutions of higher education is that of safe the court did not find Grokster liable as a con- harbor (DMCA, n.d.), which can limit the liabil- tributory infringer that “specifically contradicted ity of Internet service providers (ISPs). Colleges the probable noninfringing use standard articu- and universities are considered ISPs and as such, lated by the Seventh Circuit in Aimster” this safe-harbor status can protect colleges and (McCormick, 2006, p. 718). universities from monetary damages awarded if users of their computer network are found guilty The plaintiffs appealed to the Supreme of copyright infringement (McCormick, 2006, Court in MGM, Inc. v. Grokster (Grokster III), pp. 716-717). However, this protection is only 125 S. Ct. 2764 (2005), and even requested that extended when ISPs haveand enforce a policy Congress consider legislation that would over- that informs all users of the legal issues sur- turn Sony,which as mentioned above has been rounding electronic files and terminate from controversial because much of the legal and their network anyone who is a repeat offender technological landscape in this country has (DMCA, n.d.). changed during the ensuing twenty years. In 2005, the Supreme Court vacated the 9th The newest legislation proposed on this Circuit's ruling and remanded it for further con- topic is the Higher Education Act Reauthorization that would actually block feder- business model by purchasing detection and al financial aid for all students at an institution legal downloading software. According to 49 where a student repeatedly and illegally down- Adrian Sannier, university technology officer at loads media files. The American Council on Arizona State University, in his testimony before Th e Education (ACE) promptly reacted on behalf of the House Committee on Science and J o 12 other higher education groups (ACE, 2008). Technology in June, 2007, colleges and universi- ur n While the groups were supportive of requiring ties must be careful not to commit institutional al o campuses to inform their campus communities funds in antipiracy software lest they “end up f T e of their copyright infringement policies and pos- caught in an expensive 'arms race' between tech- c h n sible consequences, they were not in favor of nology companies and enterprising file swap- o lo requiring institutions to “provide alternative pers” (Read, 2007, p. A34). Sannier’s point is g y music and movie services and implement tech- particularly relevant given that higher education S t u nological measures to deter file sharing” (ACE, information technology offices are already die s 2008, para. 3). The vagueness of this provision engaged in numerous other technological arms isproblematic for two reasons. It does not speci- races, combating ever-increasing volumes of fy what “provide” means; thus, it is unclear if an junk email, viruses, spyware, malware, and so institution could simply make the free iTunes forth. Opening up a new front in this arms race application available to students, or if institu- would likely prove costly on a variety of levels. tions are required to purchase a legal streaming service license such as Yahoo! Music for their During that same hearing, Gregory A. campus. In addition, requiring institutions to Jackson, vice president and chief information implement technological measures to block file officer at the University of Chicago, and Cheryl sharing has not been cost effectiveor efficient. A.Elzy, dean of libraries at Illinois State University, testified that colleges and universi- In the letter written to the tworanking sena- ties “would benefit at least as much from educa- tors, ACE President David Ward assured the tional programs and improved legal-download- senators that “colleges and universities take ille- ing services as they would from technological gal file sharing very seriously. Institutions deal tools” (Read, p. A34). In response to these com- with illegal file sharing through the education of ments, Florida Representative Tom Feeney told their students, network management, and institu- the college administrators that he was “disap- tional policyenforcement” (ACE, 2008, para. 4). pointed” that theyhad “minimized the potential He challenged the 2005 MPAA statistics cited in of technological solutions” to piracy (Read, the legislation that 44 percent of its domestic 2007, p. A34). He further warned that colleges losses were due to illegal P2P file sharing by and universities take “aggressive steps” to college students. According to Ward, the MPAA address illegal file sharing and insisted he would itself recentlyrevealed after reexamination that push institutions to use some type of antipiracy the actual loss due to college students was only technology, “whether you like it or not” (Read, 15 percent and since only 20 percent of college 2007, p. A34). students live on college campuses, only 3 per- Delicate Balance of Student Rights cent of MPAA losses can be attributed to college and Institutional Liabilities students using campus networks. Given this Although there are legitimate and legal small percentage and current technologies, it means for P2P file sharing, the vast majority of would be burdensome and ineffective to require press on this topic has been about the illegal file campuses to purchase software that not only sharing, specifically by college students. Within restricts network activity as well as students the discussion on the legal rights of students to legally accessing digital media (Ward in ACE, access digital media, there are essentiallythree 2008). main considerations: the definitions of down- While institutions of higher education loading versus piracy, balancing content restric- should not be complicit in the illegal download- tion with bandwidth issues, and the notion of ing of files bytheir students, some academics creativity and innovation. and lawyers question if it is the role of higher Often when the topic of downloading digital education to be the enforcer of these laws and if, media is discussed,the first thought is that this at public institutions, taxpayer dollars should be is being done illegally. This illegal practice is used to further support this seemingly outdated commonly called piracy since it is viewed as essentially stealing content rather than paying a sible. These informational conduits are liable to price to use or own it. However, downloading be overused, and other strategies, such as the rel- 50 digital media has many legitimate, noninfringing atively slower but steady trickle of P2P, are es uses both inside and outside of higher education. required.” He also stresses that the relationship di u P2P file sharing is typical in small organizations between P2P and FOSS is not one purely associ- t S where there is not a centralized server so that ated with distribution of a final product. Rather, y g o any user can use and share any file with another P2P also provides much of the critical connec- ol hn user within their network (“Tech Encyclopedia,” tivity needed to facilitate collaboration on such c Te 2008). projects: of al Other examples might include students in a [P2P] depends on a floating and often invis- n r u band wanting to share their own music with ible public whose nearly automatic sharing of o J e known friends or unknown fans; students work- material bypasses and renders nearly irrelevant h T ing on a group project in class sharing files with the older model of static servers. And for free each other; students or faculty who have created software, whose license not just allows but original works – even commercial works – but encourages the free distribution of the commod- want to allow “mash-ups” (creative reinterpreta- ity and code, P2P not only is the natural vehicle tions) of it; or students who have filmed their but also grows the community upon which the own movies and have no other means for distri- software is built. (personal communication, bution. A recent example of noninfringing use September 3, 2008) of P2P includes fan-produced films, such as the user-created “new” episodes of the original Star Hilton (2006) encourages colleges and uni- Trekseries, called “Star Trek: New Voyages” versities to participate in the open source move- (recently renamed Star Trek: Phase II). Each of ment in supportof the notion of free exchange the current episodes available, all done via vol- of ideas. Open source software (such as Linux unteers and strictly not-for-profit, rely on P2P as and OpenOffice.org) is primarily available one of several distribution mechanisms since through P2P filesharing since this shares the “bandwidth and storage are at a premium” and bandwidth overload and thus does not overbur- P2P makes more efficient use of both (“Star den any one network. Trek: Phase II FAQ,” 2008). Downloading and CreativeCommons is another example of accessing these episodes represents a veryclear, efforts to supportcopyright while supporting the noninfringing use of P2P that could be used by public access to information. On the Creative students and faculty in assignments related to Commons website, the claim is made that ends media studies, theater, film, popular culture, and are cooperative and community minded, but the others. means are voluntary and libertarian (Creative Another example would include computer Commons, n.d.), because it allows authors to enthusiasts wanting to share the newest Linux choose a license that allows both commercial as distribution or similar free/open source software well as non-profit use of work. Similar to open (FOSS). Open source software, while in many source software, manyof the works licensed cases has sponsorship from large technology through Creative Commons are accessible companies such as IBM and Google, is still ulti- through P2P networks. According to Morrill mately community driven with ISO disk images (2006), CreativeCommons and P2P are ideally often being distributed by way of BitTorrent and suited, and the piracy-related stigma surrounding similar P2P methods. Having this option avail- P2P neglects the “hundreds of creative commons able is not merelyhelpful; it is critical. works that are in the [P2P] distribution channel” (para. 7). Examples of this would include sites Dr. Louis Suarez-Potts serves as community like LegalTorrents, an “online digital media manager for the OpenOffice.org project, an community” with the following goals: office productivity suite compatible with Microsoft Office and one of the largest open We discover and distribute high quality source projects in the world. Potts (2008) argues open-license (Creative Commons) digital media that P2P distribution is essential for this and and art, and provide support to Content numerous other open source efforts, “but for Creators. We host creative content in its entirety, many, downloading [free and open source soft- ensure fast, reliable downloads, and enable users ware] from fixed servers via fat pipes is impos- to directly sponsor Content Creators and their work. We distribute content with the full permis- with which these illegal acts have been pursued, sion of the rights holders and use the peer-2- adirect and widely communicated institutional 51 peer file-sharing technology called BitTorrent. policy must be available to students, faculty, and (2003, para. 1) staff. In March 2008, Temple University was yet Th e another institution to inform all faculty, staff, J o According to Hilton (2006), Creative and students of such a policy through a campus ur n Commons “provides a mechanism for sharpen- email entitled, “Policy Reminder on Copyright al o ing the blunt instrument of copyright” (p. 70). Violations.” This memo focused on the legal f T P2P has become an important distribution ramifications of illegal downloading and offered ec h means for this mechanism. individuals assistance in removing illegal files no lo from their computers (Temple University, 2008). g y Hilton’s (2006) assertion is admittedly more Realistically speaking, this will be an ongoing S t complex as it deals with the notion of creativity challenge for administrators on campuses to udie and dissemination of knowledge in society as s ensure all users are informed of this policy, well as the academy. This author states that especially given the pervasive nature of access- “most people think that the primary purpose of ing digital files via the internet and the ease copyright law is to protect an author's intellectu- with which students can access this medium. al property or idea. In fact, the primary purpose of copyright law is to promote learning through In addition, institutions must hold inclusive the spread of ideas” (p. 66). Though not the typ- discussions of not only the legal implications of ical response if one were asked about copyright, illegal file sharing, but also the ethical consider- this definition is very much consistent with the ations of howtorespond to requests for students academic values on which our colleges and uni- named in lawsuits for illegal file sharing. These versities were founded. As such it seems that discussions also should include how to educate higher education should strive all the more to members of the campus community about fair balance the individual incentive to create new use as part of a greater conversation on intellec- ideas with the sharing of and collective access to tual property, and legal ways to download and information. Without this balance, many future use digital files. Given students' relative imma- innovations could be stifled or at the very least turity and the potential consequences, an educa- delayed. According to Hall (2006), “P2P shaped tional focus on ethical behavior along with the the Internet as we know it today. If Internet serv- legal details of file sharing seems quite appro- ice providers were initially aware of the possibil- priate. ity of being liable for online copyright infringe- ment, the Internet might not be the wealth of Through its Digital Citizen project at ideas it is today” (p. 392). Illinois State University (ISU), a partnership of individuals and units from across their campus Even though proposed legislation in are involved in a research project to learn more Congress as well as the threat of lawsuits require about their students' use of P2P file sharing soft- institutions do more than merely hope students ware. Through this research project, the authors use P2P networks appropriatelyand legally, any attempted to turn anecdote to facts through institution would rather deal with such issues research, and assert that illegal downloading is a proactively, educating students and hopefully symptom not the problem that is not incubated preventing them from committing illegal acts. in higher education but inherited from K-12 As outlined earlier, judicial deference toward (Illinois State University, 2007). Though in the higher education has not been extended on this earlystages of their study, ISU researchers particular subject, making it critical for colleges found that most students are somewhat aware of and universities to take this issue seriously. the legalities downloading digital media. Many students claim theywould stop doing so illegally The first step for institutions may very well if caught, but would only stop for a few days. be to craft and enforce “acceptable use” policies. Although ISU chooses not to use packet-shaping Kaplin and Lee (2007) asserted that the policy software such as Packeteer to limit bandwidth to should be made available to the campus commu- certain types of network activity, many campus- nity online and that the policyshould be posted es do just that in an attempt to curtail illegal P2P in computer labs and copy centers in plain view file sharing. One of the other hallmarks of this of users. With the relativelyrecent and evolving project is that ISU is partnering with RIAA, nature of the legislation, as well as the fervor MPAA, as well as corporations that have a vest- P2P file sharing uses and to pledge they will not ed interest in reducing illegal file sharing by illegally download media files (Emerson, 2008). 52 college students (Illinois State University, n.d.). The university's vice president for information es technology, Michael Pierce, said that instead of udi According to McCormick (2006), many col- blocking all traffic to the P2P sites, USF wanted t S leges and universities are creating educational to make students aware using P2P software, y g o campaigns to inform their campus communities because it can be used for legitimate purposes. ol hn of the potential consequences of illegal P2P file If students violate this agreement and if they are c Te sharing as well offering “free music download named in an RIAA letter, they will be processed of services to students as a legitimate, legal alter- through the campus discipline process in which nal native to illegal P2P file-sharing” (p. 724). As their sanction may be as serious as a suspension, r ou mentioned, the question of what type of free as well as any legal penalties from their RIAA J e downloading service and who should pay is still case. In addition, USF provides new students h T in question. It is difficult to define “offering,” at with information about this campus policy dur- least in terms of whether or not offering access ing orientation programs, in the residence halls, to legal music services will be enough to placate as well as through direct communications the recording industry. Would it be enough if (Emerson, 2008). institutions simply had iTunes installed on all university-owned systems, both Mac OS X- This new system costs USF about $75,000 based and Windows? On one hand, the institu- per year, which some argue should instead be tions in question would provide easy access to spent for educational purposes. Other academics the iTunes Store, which offers a wide variety of add that colleges and universities should not be commercial audio and video content and numer- coerced into spending taxpayer dollars in an ous free songs, free episodes of television attempt to stave off future law suits. Steve shows, and thousands of free audio and video Worona, Director of Policy and Networking podcasts. This strategy would require no addi- Programs for Educause, agrees with both argu- tional costs, beyond the time needed to update ments, saying that the time and money spent on the disk images of these systems. But, would blocking illegal downloads, which could be such an undertaking be enough, or would insti- “tens of millions of dollars” nationwide, should tutions be required to actuallypurchase massive be spent on educational needs as determined by subscription plans for their students to services individual institutions (Worona, in Emerson, like the Microsoft Zune Marketplace, or the 2008). MTV URGE store? If so, wouldn’t such an action effectively amount to a massive subsi- Manystudents and professors applaud these dization of the business model of a private educational approaches as a means to stayahead industryby(in manycases) public institutions? of the legislation and, they hope, lessen institu- Again, it goes back to how seemingly innocuous tional liability. Though these approaches still terms like accessand offerare defined, and by allow the legitimate and beneficial uses of P2P whom. From a purely pragmatic perspective, software for faculty and students alike, some Kaplin and Lee (2007) indicated that these members of university communities are con- efforts might be a good investment because, in cerned that the overly restrictive measures their estimation, more colleges and universities regarding their campus networks could under- havenot been sued over the years because of mine the very foundation of academe. their good-faith efforts to inform campus com- McCormick (2006) states, “Unfortunately, the munities and respond to allegations of file-shar- collective effort of these measures, along with ing infringement. current statutorylaw, may have the unintended consequence of chilling the academic discourse As one example, administrators at the vital to higher education's central goal and the University of South Florida (USF) recently technological innovation on which private indus- informed users of a change to their campus net- try has come to rely” (p. 725). work. Instead of completelyblocking all P2P Slippery Slope software from this campus network, or resorting Colleges and universities will thrive to the to Draconian packet shaping measures, when a extent that they foster innovation and the free user attempts to use the university network to exchange of ideas. The ability to do so is threat- access P2P software, he/she is redirected to a ened bythe emerging view of ideas as pure web page, which reviews appropriate and legal property and by a shift in focus from serving the infringing or noninfringing use of P2P software. public good to serving the bottom line. If we Rather than taking an either/or position as many 53 want to preserve innovation, we have to begin extremists have done, it is time for educators to asking how we can share, rather than how we do what we do best: respond to this societal Th e can protect. (Hilton, 2005, p. 73) issue by being true to our beliefs, which J o includes engaging interested parties in discus- ur n It is clear that institutions cannot permit or sions on the protection of intellectual property, al o allow students to use campus networks to com- how technology has changed, and the way peo- f T mit illegal acts of downloading digital media. ple view it, while maintaining a commitment to ec h The potential liability demonstrated in recent educate students along the way. Too much is at no legislation and legal cases has made this painful- stake not to carefully consider the consequences log y ly clear. However, institutions also have obliga- of these threats. Harrison (2006) states: if higher S t u tions to defend core values and be informed par- education maintains a role to “educate first and die ticipants in this ever-important societal conver- discipline second, we can encourage and rein- s sation. Harrison (2006) suggests the issues force habitual respect for ownership and fair inherent in this conversation are timeless, and use” (p. 708). focus on “questions of ownership, intrusion into private lives, and ethical actions in the face of Lisa McHugh Cesarini is the Assistant Vice choices” (p. 708). McCormick (2006) echoes Provost for Enrollment Management at Bowling these thoughts: “Higher education must react to Green State University. the changes in technology and the changes in laws in verytechnical ways, but our starting Dr.Paul Cesarini is an Associate Professor and place should be grounded in basic fundamental Chair of the Department of Visual questions, and with a goal to foster our academ- Communication and Technology Education at ic purposes” (p. 682). It is critical for adminis- Bowling Green State University, and is a trators and faculty in higher education to consid- Member-at-large of Epsilon Pi Tau. erthe ethical perspective in spite, and perhaps in the midst, of pressing legal threats. Since 2000 when Metallica included three universities in its lawsuit against Napster, higher education has been reacting to and running from potential legal threats, often regardless of the References American Council on Education (ACE). (March 11, 2008). ACE submits comments on file-sharing provisions in HEA reauthorization legislation. Retrieved March 13, 2008, from http://www.acenet.edu/AM/Template.cfm?Section=HENA&TEMPLATE=/CM/ContentDisplay.cfm &CONTENTID=26000 Bono, M. (1998, October 7). Congressional testimony on the Sonny Bono Copyright Term Extension Act. Retrieved February22, 2009, from http://thomas.loc.gov/cgi- bin/query/F?r105:1:./temp/~r105cSf1W8:e46923: Carlson, S. (2000, April 28). 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