Monday, March 12, 2007

 

Ask the Administrator: Phone Cops

A West Coast correspondent writes:

I wondered what you thought of the statement USC made about the
purpose of universities, in the context of complaints form the music
industry about possible illegal copyright violations committed by its
students.

"As an academic institution, USC's purpose is to promote and foster
the creation and lawful use of intellectual property. It is
antithetical to this purpose for USC to play any part, even
inadvertently, in the violation of the intellectual property rights of
others. "

it comes from a letter Cory doctorow re-posted here
http://craphound.com/usccopyrightcompliance.html

The letter was just reposted recently, although it was originally sent
(in this version) last year.

I feel about it similar to what I did about the INS asking state
university employees to inform on the immigration status of their
students, with the additional issue that the legal issue here is even
less clearcut. I'm going to blog about the reasons why the current
wave of threatening letters from the RIAA to students is both in very
bad faith and possibly a violation of due process. (I'd also love to
know how your institution, from the admin side, looks at these kinds
of issues - is it purely defensive, or is there a consideration of the
rights of teachers and students?).

I wish there had been or could be a public statement by other
universities distancing themselves from this.. probably a pipe dream,
and there are probably a host of public statements released by
universities about what they are for.. but still it seems a bad omen
to embed universities in tracking and enforcement of law at all let
alone dodgy, industry-designed interpretations of law.


I'm not a lawyer. Just wanted to get that out of the way.

A little while back my cc got a very threatening letter from a coven of attorneys (I think that's the correct term) warning us that they held the copyright on streaming video, and that they were aware that we used streaming video for some of our online courses. For the low, low fee of $10k (later lowered to 5k), they promised to issue us a license for it. After some internal discussion, we decided to relegate the letter to the circular file and take our chances. So far, so good.

The whole episode reminds me of an old episode of WKRP in Cincinnati, in which somebody broke a phone and Johnny Fever got paranoid that the Phone Cops were going to get him. (For younger readers to whom the joke is opaque, there was once a single phone company, called Ma Bell. It engaged in all the arrogant monopolistic practices that arrogant monopolies are famous for. When WKRP was still being produced, Ma Bell was still in force. You couldn't even own your phone; you rented it monthly from the phone company! It wasn't that great a leap to imagine that Ma Bell had her own police.)

The Phone Cops have been relegated to the dustbin of history. Now colleges are supposed to be the Music Cops.

I first felt the copyright clampdown in the early 90's, when I was a lowly teaching assistant for The Great Bloviator. TGB assembled a photocopy packet of readings for the students, which he had printed and bound at a local copy shop (as was the practice at the time). One of the readings was a chapter from one of TGB's very own books. The section where that chapter was supposed to be was replaced by a single page, announcing that they couldn't get copyright permission from the author. To me, that just summarized TGB. But it turned out to be part of the Great Kinko's Klampdown, in which 'fair use' of readings was redefined to be much narrower than most of us had previously understood.

In the wake of Napster, Kazaa, BitTorrent, and the rest, of course, the Kinko's Klampdown is small potatoes. The real litigation now is to be found in the world of digital copying, since copying there is so much cheaper, faster, and easier, and the technology gets better all the time. To the extent that colleges provide internet access to our students, we are suddenly – at least potentially – on the hook for whatever creative new ways young people with time and technology, but without money, find to game the system.

Thanks, but no thanks.

Our IT staffs are swamped now just trying to keep up with the constant changes in operating systems, web platforms for distance ed courses, podcasting, viruses, and the like. If they start monitoring everybody's internet use, the cost in money and manpower would be staggering. From an administrative perspective, this is a colossal nightmare, since it's no-win. There's really nothing in it for us, since it's not at all central to our mission, and we don't get a cut, so I'd expect to see some serious foot-dragging. Were I the local guru of IT, I'd put this about 379th on my list of priorities.

Instead, I'd probably take a twofold approach:

  1. Get out of the ISP business. I don't know why so many colleges and universities continue to act as ISP's. Reimburse employees for home connections, and maintain a campus network, but for heaven's sake, don't try to provide service to the folks at home. If ever a service were a candidate for 'outsourcing,' this is. If Sally Student uses her Earthlink account for nefarious purposes, then the fact that she's a student is irrelevant. Don't take on liabilities you aren't even vaguely prepared to handle. (I'd even advocate doing this for dorms. Let Earthlink, or whomever, provide internet service for the dorms. Make it their problem.)

  2. Post some sort of checkoff box at each computer in the labs, stating that inappropriate use (however defined) is a violation of (whatever). Require the user to acknowledge the policy as a condition of using the computer. (The same might apply to a web platform for a distance learning course.)

It would also be reasonable to hold public forums on 'fair use' and copyright law, and I'd certainly comply with valid legal search warrants. But to just start threatening students willy-nilly on behalf of a civil tort – not a criminal offense – that does not affect the college directly strikes me as absurd. When students plagiarize published sources in research papers, we don't compensate the authors financially, since it would be missing the point to do so. If someone has a case to bring, let them bring it. But don't make college IT staffs the Music Cops.

The precedent would be as disturbing as the act itself. Should we monitor email for offensive content? Should we enforce local 'anti-fornication' laws in the dorms? (At least we're spared that one, by virtue of lacking dorms.) What if some kid rips a tag off his mattress? And don't even get me started on the 21 drinking age.

Colleges are not law enforcement agencies, and should not be expected to be. We have enough on our plates as it is. Let the police do their jobs, and let us do ours.

Have a question? Ask the Administrator at ccdean (at) myway (dot) com.


Comments:
Dean Dad, I hate to say this, but it's more complicated than that. It's hard to get out of the isp business. We'd have to outsource that and that's not free. Some schools separate the students from the rest of campus, network-wise. We could charge for that, of course, in a similar way that we all pay for internet service at home. And what about access issues? What if Susie can afford the high-speed connection while Johnny can only afford dial-up (or nothing at all) and yet, you're expecting him to watch that streaming video of the guest lecture for class tomorrow? I'm not saying it can't be done. I'm just saying it's a culture change in many places and there are many problems that would have to be overcome first.

We already do the checkoff thing, as most schools do. In order to obtain an account (email, web, Blackboard), students, faculty and staff must all agree to our policies, which include not downloading or sharing copyrighted content illegally. Some schools make people agree to this every time they log in. Others, like us, do it once when they sign up for accounts.

According to our lawyer, legally we have to forward takedown notices and other notices to the offending persons. We do not have to reveal the identity of said persons unless we receive a subpoena. I don't like serving as the go-between anymore than anyone else. And I agree, it's not within our mission to police these kinds of things. The solution? Write the congresspeople on the committee that's dealing with this issue (Information on my blog.) Tell them how crazy this is. And tell them to tell the music industry to get a clue.

The reason, by the way, that the RIAA goes after colleges is because we don't have the deep pockets that commercial isps have. Most schools do not want to become the test case. If policing takes time and money, imagine how much time and money would be spent on such a case. Personally, I'd like to see someone take them on. Realistically, I know it's not going to be my insititution.
 
The whole question of copyright in academic institutions brings up an incident that occurred here at Proprietary Art School about a year ago.

At that time, our administration went through a major panic about copyright, saying that because we were a for-profit school, the educational copyright exemptions that are traditionally applicable for nonprofit educational uses did not apply to us, and that we needed to clean up our act lest we be sued into insolvency. I suppose that someone in higher-level corporate management must have panicked, fearing that proprietary schools might become a new and fresh feeding ground for gaggles of expensive lawyers.

Management even seemed to imply that simply because we were for-profit, the fair use provisions of the copyright law did not apply to us. Too many teachers had adopted a “don’t ask, don’t tell” attitude toward copyright, one in which if they took the trouble to ask if they have permission to use copyrighted material in class they ran the risk of being denied, so they didn’t ask and went ahead and did it anyway, hoping that they wouldn’t get into trouble. A rather draconian and restrictive set of use provisions was imposed, one in which teachers needed to obtain clearance and permission for just about anything they used in the classroom. We had to make sure that we did not hand out in class copies of anything that was subject to copyright, that we never played a copyrighted movie in class, that we never played a copyrighted song in class, and that we made sure that we had clearance for any copyrighted images that we included in our PowerPoint presentations. I had to sanitize my own PowerPoint presentations, and I removed any images that might be subject to copyright. I replaced them with images downloaded from Corbis, since the school has an agreement with Corbis that we can use their images.

Are the copyright rules really different for proprietary schools as opposed to those for nonprofit institutions? Has there ever been any court ruling on this?
 
artmathprof, IANAL. But I think it's fair to say that actual court rulings with respect to fair use of copyrighted material in educational settings are few and far between. (Nobody wants to be the test case, etc.)

"I don't know why so many colleges and universities continue to act as ISP's."

Oh, sure you do. It's another example of the mutually assured destruction of intercollegiate competition. If School A does it, School B will do it (at least if School B considers School A to be a direct competitor). In 1994, when my employer at the time made its first pilot efforts at operating dormitory networks, it was really more of a case of keeping up with the Joneses than anybody wanted to admit. Now that it's there, it may look stupid to provide it in an environment where there's ready access to DSL and cable modems (which of course doesn't describe all college campuses), but as laura said it's awfully hard to get rid of a service once you've started offering it. (Especially if your competitors aren't getting rid of it.)
 
DD, while I think your post does a nice job of summing up many of the issues at hand, point one is a little short-sighted. There is, first and foremost, the issue that Laura points out. It's an issues of fairness that at most public institutions turns into an issue of class: if students are left to their own devices for academic resources, then the students without resources cease to excel. We've seen this over and over with public school systems, we don't need to exacerbate the problem at the post-secondary level.

From an IT persepective, it's at best a zero-sum game. Having to guarantee and troubleshoot connections from every cut-rate provider students may turn to in order to save a buck eats up resources and time that quickly begin to balance out the costs of simply offering our connectivity and telling students and faculty that they're on their own with anything else.

Second, and perhaps most importantly, most of the advancements in network applications in the last 15 years have been made by students--and not always CIS students--using campus networks in their spare time. Google and Napster, of course, spring most readily to mind, but they're just the tip of the iceberg. Campus networks are where each new generation of grads cuts its infotech teeth on reasonably cutting-edge technology that may not yet be readily available or affordable in the unsubsidized marketplace. It could be argued, of course, that exposure to new technology isn't part of the institutional mission. I would argue, though, that exposure to a vibrant, open, experimental network is at least as important to the contemporary college community as campus clubs, student leadership, or intramural sports. That is, a compulsory part of a necessary extracurricular environment.
 
Jay, you’re right, I’ve seen examples of only a couple of lawsuits involving violations of copyright in academic institutions, and I haven’t seen a single case specifically involving copyright infringement at a for-profit school. Perhaps this is because most rightsholders don’t want to look like bullies and sue schoolteachers.

In one case, a city school system was sued because a schoolteacher had copied and distributed without permission substantial parts of a copyrighted booklet on cake decorating to her classes.

Another case was one in which a consortium of school districts had videotaped some educational programs that were broadcast on public television stations and then made copies available to member schools. The court ruled against fair use, since it concluded that the action of the school board would have an adverse affect on the market for these videotapes, which were available on the market for lease.

The key factor in Basic Books vs Kinko’s case was the fact that the university which created the coursepacks used a for-profit commercial enterprise to duplicate and distribute them. The lawsuit was against Kinkos, not the university. Kinkos made a profit on the deal, which tipped the scales against fair use. The court left open the question of whether universities could produce coursepacks in their own photocopying facilities so long as they do not enjoy any direct commercial gain.

The main issue in all of these cases seems to be--did you make any money when you did your copying? Did you adversely affect the market for the original work? This seems to be true for both non-profit and for-profit institutions. If you made any money when you did your copying, you could end up in legal trouble. Even non-profit organizations can be sued if they exceed the limits of fair use, so not all non-profit educational uses of copyrighted material are automatically fair. However, the opposite is not necessarily true. Even if a for-profit corporation makes money on their reuse of copyrighted material, this is not necessarily automatically outside the bounds of fair use, especially if it is perceived that the public had benefited in some way.

So where does all this leave us? The fair use law is quirky, the courts have made contradictory decisions, and there is no predictive value in the law as to whether your specific use of copyrighted material will be deemed fair use or not. So the default strategy seems to be to ask permission and seek licenses for just about everything you do in the classroom with copyrighted material. The more you learn about copyright, the more suspicious and paranoid you become.
 
artmath, I agree that there are some sticky fair use issues out there. It's something we discuss regularly as the law and interpretation of the law seems to change regularly. However, downloading and sharing copyrighted material does not fall under fair use at all.

jay, you make some great points. I was thinking of analogy between providing network access and providing workout facilities. Most schools believe in providing students with the opportunity to stay healthy. It seems like the use of a network provides more extracurricular activities, some of them quite valuable learning experiences.
 
This is an interesting discussion, and I have a feeling the horror stories have just begun, in terms of threats and lawsuits.

But I also wondered why everyone has let slide USC's statement about what the purpose of the university is. Does that seem like a meaningless public statement to make? or is it worthy of challenge?

I am not politically experienced in these things, but i would have thought that was somewhat controversial: that the purpose of a university to to promote the protection and the production of intellectual property..
 
I had a feeling that Laura would know more about this than I did.

The equity issue strikes me as overblown, though. I'd imagine a school could negotiate a group rate for its students, then include that in their college fees. Let Johnny and Susie have the same access; just don't make the college the ISP.

I didn't go after the 'purpose' statement, since if you replaced 'intellectual property' with 'research,' it's defensible for an R1. Of course, most colleges in America aren't R1's.

Fair use is slippery. I remember wondering, back in my teaching days at Proprietary U, whether the proprietary nature of the school rendered fair use out of bounds. I never really found an answer to that.

Thanks to everyone for deepening an admittedly naive posting.
 
Not "deepening" anything here, but DD--is that THE Bloviator?

Did you work for O'Reilly? REALLY?
 
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