Tightening the Net: Intellectual property micro-regimes and peer-to-peer practice in higher education networks
First Monday

Tightening the Net: Intellectual property micro-regimes and peer-to-peer practice in higher education networks by Steven J. Jackson and Alok Vimawala



Abstract
This paper examines recent responses by U.S. university administrators to the volume and legal challenges surrounding on–campus and in–residence peer–to–peer (P2P) traffic. Since the earliest days of online P2P activity, universities have served as key flashpoints in the broader file sharing and intellectual property debates. But while there has been considerable attention to the emerging file–sharing case law, and some attention to the shifting legal and political strategies of IP holders most affected by P2P traffic (or most aggressive in asserting their rights), the multiple, varied, and often ambivalent responses of university network administrators have for the most part escaped sustained attention. This paper draws on published survey and original interview data to explore the distinctive and heterogeneous policy sets put together by campus network administrators and decision–makers in dealing with IP issues associated with on–campus file–sharing practice. Such institutional micro–regimes constitute a crucial and understudied border zone between law and culture, functioning as key translation points through which external IP claims get filtered (e.g., DMCA take–down notices), and strategic sites at which a substantial amount of real–world IP regulation is effectively accomplished.

Contents

Introduction
Universities and digital copyright: Explaining the anomaly
Universities, Napster, and the RIAA: A love story
Mapping IP micro–regimes in higher education networks
Changes and challenges in campus IP micro–regimes
Conclusion

 


 

Introduction

Universities have emerged as key flashpoints in the ongoing battle over intellectual property and cultural production in a densely networked world. From the early days of the Napster controversies to the Higher Education Opportunity Act of 2008 and the Anti–Counterfeiting Trade Agreement (ACTA) currently under negotiation, university practices and policies around file–sharing through campus networks have attracted external scrutiny and periodic controversy. Institutions of higher learning have been early and experimental adopters of new technologies, within and beyond formal institutional functions. The university’s rapid generational turnover has meant that a large proportion of university students (and increasingly faculty and staff) have grown up with information technologies inextricably embedded in their academic, personal, and professional lives. At their best, universities (sometimes despite themselves) have functioned as hothouses of technical and cultural innovation, developing, nurturing, and disseminating many of the technologies and practices that supply the technical and legal fodder of successive Web X.0 (1.0, 2.0, 3.0, etc.) revolutions. And whether measured by lawsuits, takedown notices, congressional scrutiny, or public rhetoric, universities have attracted a disproportionate share of the ire of aggrieved intellectual property holders in the recording, motion picture, and other copyright industries. For all these reasons, the complex and institutionally specific set of technical, policy, and organizational responses to copyright concerns associated with campus–based file–sharing — what we’re terming IP micro–regimes — carry important and so–far underexplored implications, both for higher education itself and the future of digital culture and practice more generally.

This paper draws on existing survey, documentary, and original interview data to explore the nature, tensions, and dynamics of these micro–regimes. We interviewed network administrators, directors of IT, residential computing officials, designated DMCA agents, and other officials charged with making and enforcing campus–level IP policies at 10 leading institutions in the United States (drawn from lists of the top ten public and private universities as published by U.S. News and World Report in 2008). This sampling strategy introduces an obvious bias into our findings, which clearly reflect IP practices, processes, and experiences at the upper end of the higher educational field. However, we believe this bias confirms more than confounds the findings of the paper: if relatively powerful and well–resourced institutions have struggled to define and organize their response to IP claims and alleged violations occurring through campus networks, we believe this effect to be even more pronounced in the middle– and lower–tier institutions that make up the vast majority of American higher education.

In the sections that follow, we explore the distinctive policy sets deployed by campus decision–makers, focusing on the unusual range of sanctions and policy levers available to campus officials seeking to manage or curb on–campus infringement problems and complaints. These include the specific (i.e., targeted to identified student users) and general (i.e., targeted to student users as a body), and range from the architectural (e.g., bandwidth constriction, account suspension) and educational (e.g., varieties of ‘just–say–no’ campaigns), to the financial and academic (e.g., formal academic probation or censure). Taken as a whole, this complex of practices, sanctions, and decision–making procedures constitutes a distinctive set of what we’re terming ‘IP micro–regimes’ operating at the campus and institutional level. Their precise shape and deployment are determined and evolve in accordance with the needs and pressures of multiple internal and external constituencies, from enrolled students and various campus sub–units (e.g., residential IT authorities, office of the general counsel) to external stakeholders such as the servers of DMCA takedown notices and congressional legislators. By exploring such dynamics in breadth and depth, this paper calls to light some of the key factors, common tensions, and emergent forces driving higher educational responses to P2P and IP practices in law and culture writ large.

 

++++++++++

Universities and digital copyright: Explaining the anomaly

In many regards, the ongoing role of universities as sites and flashpoints in the wider online copyright debates will appear surprising. Data concerning the amount of copyright infringement on college campuses remains notoriously unreliable (and much of it supplied by the copyright holders themselves). The methods used for detecting copyrighted material on file–sharing networks have also been shown to be imprecise and error–prone (Piatek, et al., 2008). Even within these limits, most available numbers suggest that on–campus copyright infringement constitutes a small (and shrinking) percentage of overall file–sharing IP violations. In 2008, the Motion Picture Association of America (MPAA) revised its own numbers downward, from an initial claim that 44 percent of all illicit file trading was being conducted by American college students to a more sober 15 percent (the MPAA explained this earlier higher number, which figured centrally in its Congressional lobbying tactics, as a product of “human error.”) (Associated Press, 2008). And the number may need further trimming. Mark Luker of EDUCAUSE has argued that the 15 percent claim fails to account for the fact that approximately 80 percent of U.S. college students live off campus, with Internet access provided through commercial Internet service providers. Once this is included, the percentage of known copyright infringement attributable to campus–based networks shrinks to three percent (Associated Press, 2008).

It is also no longer the case, as it arguably was in the late 1990s and early 2000s that students’ first experience of the norms and limits of online culture occurs upon arrival at the doors of higher education. As noted repeatedly by campus officials interviewed in the course of this study, students in recent incoming classes have brought with them steadily more sophisticated and entrenched online histories and practices. This has pushed the frontier of copyright culture downwards into earlier ages and levels of education (a fact not lost on the RIAA, MPAA, and other copyright holders, who increasingly identify secondary and primary education as key targets in their educational efforts [Gillespie, 2009]).

Despite these facts, campus–based university networks continue to figure centrally in the legal and lobbying strategies of the copyright industries, and arguably public perceptions of IP violations through file–sharing more generally. In media coverage and the public imagination, the archetypal figure of the online file–sharer is still very likely to be sitting somewhere, late at night, in a college dorm room.

How do we explain this apparent anomaly? For the purposes of intellectual property policy and practice, universities possess an unusual mixture of weaknesses and strengths, vulnerabilities and affordances. First, in contrast to the major commercial ISPs (Comcast, Verizon, AT&T, etc.), the legal and other resources needed to challenge the tactics of the RIAA and other copyright holders are in relatively short supply on most university campuses, particularly outside of elite tier–one institutions. University offices of general counsel remain small by corporate standards, and spread across a wide range of issues and concerns of which IP infringement through file sharing represents a small fraction. Already taxed by the administration of the current regime of takedown notices, university administrators appear to have little stomach for a much more expensive and thorough going legal challenge to the system at its roots [1].

Second, as institutions substantially dependent on public funds, either directly (e.g., annual state appropriations for operating expenses) or indirectly (e.g., as recipients of federal research dollars), universities are vulnerable to congressional and/or state–level pressures in a way that commercial Internet service providers are not. This point is clearly reflected in the lobbying tactics of organizations like the RIAA and MPAA, which have orchestrated coordinated, carefully timed, and well–funded campaigns targeting key congressional members and committees. In 2008, the RIAA spent US$7.93 million and the MPAA US$3.96 million on Senate lobbying activities — figures that exclude amounts spent by either organization on the House of Representatives or state–level lobbying efforts, and all lobbying activities (federal or state level) conducted by their individual member organizations [2]. As pointed out by more than one of the university officials interviewed in the course of this study, the famously fluctuating rate of IP violations ‘discovered’ and subsequently prosecuted through DMCA take–down notices and much–publicized ‘worst offender’ lists seem to rise and fall in concert with the timing of key committee hearings and the introduction of copyright–relevant legislation in Congress.

Alongside such vulnerabilities are two more positive institutional characteristics that make universities important battlegrounds for the fight over intellectual property online. First and most obviously, the core educational function of universities make them strategic sites for training consumers and citizens in the appropriate modes of networked interaction of all types, including around the proper and improper handling of copyrighted materials. If this effect has arguably weakened from its peak in the late 1990s and early 2000s (when universities often provided students their first and most extensive experience of online culture), university populations continue to lead adoption of new and high–growth applications (including the panoply of Web 2.0 technologies) and arguably retain a key function in ‘normalizing’ online culture for their students. The salience of this point is sharpened by two additional characteristics of students in higher education. First, they represent a demographic long coveted by recording, motion picture, and other content industries as major current and future consumers of copyrighted content. Second, particularly in the case of the elite tier–one institutions studied here, they tend to come from and move into relatively affluent class profiles with both considerable disposable income and a disproportionate influence on future public decision–making. In this regard, universities function as finishing schools for digital citizenship, informing the actions and preferences of sought–after consumers and future opinion leaders.

Second, beyond their educational functions vis–à–vis their own students, universities may serve as important IP battlegrounds due to broader cultural demonstration effects, and in particular their ability to normalize and in some measure condone or sanction practices throughout the culture at large (á la “if it’s okay at Harvard ...”). In this regard, universities may exercise a sort of moral or cultural capital unavailable to commercial Internet service providers, and thus play a role in conferring or denying legitimacy to certain kinds of online (as indeed many other social) practices. This is particularly true of the public and private institutions regularly gracing the ‘top 100’ lists of U.S. universities — the Harvards and the Yales, the Berkeleys and the Michigans. This broad ‘cultural deterrence’ function may provide an additional reason for why the apparently moderate level of IP infringement on university campuses should merit an apparently immoderate level of attention by the copyright industries.

For all these reasons, in both economy and digital culture at large, universities hit beyond their weight. And while university critics have attacked RIAA and MPAA tactics — including the move to sue individual campus users, its associated methods of discovery, and the role of university IT and network administrators in delivering and enforcing DMCA takedown notices — for the most part faculty and student criticisms have not crossed over into universities’ handling of their own IP concerns. With limited exceptions, network administrators and campus decision–makers have adopted a cautious and generally rights holder compliant approach to peer–to–peer networking activities on campus. In the process, intellectual property micro–regimes at the campus level — coded in policy and network architecture rather than law — have emerged as key extralegal fora through which the norms and rules of intellectual property in a densely networked world get worked out and enforced.

 

++++++++++

Universities, Napster, and the RIAA: A love story

From the earliest days of the Napster controversies, campus–based file–sharing has posed delicate and intractable problems for university network administrators, and prompted tense relations between universities and copyright holders in the music, motion picture, and television industries.

Growing up in the wake and world of the 1998 Digital Millennium Copyright Act, the Napster file–sharing service exploded on the scene in 1999 as a new and immensely popular way for music sharing between Internet users. Replacing older copyright concerns around physical reproduction, Napster offered for the first time the prospect of a massive, and massively distributed, store of digital music content available to anyone with the bandwidth (or patience) to exploit it. This raised older and informal networks of music sharing among friends — implicitly if reluctantly tolerated by rights–holders in the music industry — into a newly perceived commercial threat: songs downloaded for free were seen as direct and immediate losses to commercial CD sales. The apparently ‘space–less’ character of online networks and Napster’s ease of searching removed previous social and geographic barriers to music sharing, making it possible to locate and exchange content ranging from mainstream to niche, the wildly popular to the locally obscure. Fronted by Napster, the Internet became, in the words of free music advocates, a “celestial jukebox” catering to the tastes and interests of all [3].

American college campuses were an immediate epicenter for the Napster revolution. As students returned to campus in Fall 1999, network administrators noted an immediate and growing spike in traffic placing new pressures on, and sometimes compromising, overall campus network performance. Even before IP–related complaints and challenges from rights holders began arriving on campus, network administrators began developing a series of responses to the bandwidth challenges posed by P2P file–sharing. Some responded by contacting students using Napster and notifying them of the adverse effects of running such bandwidth hogging programs, invoking previously obscure (or in some cases non–existent) network usage policies (Stenger, 2000). Others turned to blocking the distinctive communication ports used by Napster in order to conserve and better allocate available bandwidth. Some campuses sought to stem the problem by artificially restricting pipes in and out of residential halls (seen as a primary source of the problem) in order to protect overall campus network performance. Still others decided to not interfere with peer–to–peer traffic at all, regardless of network impact (Spletter, 2000).

Almost immediately, network congestion concerns were joined and blurred with legal pressures emanating from rights holders in the music industry. As early as October 1999 (less than four months after Napster’s inception) the Recording Industry Association of America sent letters to over 300 university campuses alerting officials to the presence of copyrighted materials on campus networks and threatening legal action against university officials who failed to take action. In October, Carnegie Mellon University responded with an unannounced search of 250 student network accounts, suspending the accounts of 71 students found guilty of hosting infringing content (Philipkoski, 1999). Pressure at the campus level was joined by the RIAA’s copyright infringement suit against Napster in 1999. Individual artists and bands, such as Metallica and Dr. Dre, followed suit in 2000, and in 2001, Napster was found guilty of contributory infringement, required to pay US$26 million in damages, and directed to filter copyrighted content on its network (A&M Records v. Napster, 2001). Traffic to Napster was greatly reduced, both before and after the service was reborn in its legalized form (Wikipedia, 2010).

Even as Napster’s star was fading, however, new file–sharing alternatives were emerging to take its spot. Services such as Limewire, Kazaa, Bearshare, iMesh and Audiogalaxy, many of them sporting a more decentralized P2P architecture that made IP violations harder to track and prosecute, quickly filled the Napster void (Jupiter Media Metrix, 2001). Some, like Kazaa and Grokster, explicitly targeted ex–Napster users, a fact not lost on the U.S. Supreme Court when deciding MGM v. Grokster (2005). There followed an extended legal and technical cat–and–mouse game, in which copyright holders and their representatives pursued serial lawsuits against the creators and distributors of P2P file–sharing services. While successful in shutting down a series of individual services (Napster, Kazaa, Grokster, etc.), this tactic proved less effective at combating online piracy in general, as users of shuttered systems simply moved their file–sharing activities to alternative networks (EFF, 2007). Around 2003, the RIAA shifted and expanded its legal strategy to include a highly publicized series of lawsuits against individual file sharers (the RIAA’s turn to pre–litigation settlement letters is addressed later in this paper). The targets of the new campaign represented a diverse user mix that included single mothers, college students, grandparents and college professors (Associated Press, 2003). Between October 2003 and June 2010, the RIAA took legal action against more than 28,000 individuals (EFF, 2007) [4].

The Napster controversies provided university officials and network administrators their first and most intense taste of the challenges associated with network administration and governance in a radically P2P world. While neither IP challenges (e.g., the earlier Kinko’s controversies around photocopying class readings) nor network administration issues (e.g., appropriate use cases challenging network administrators from the mid–1990s and before) were new to higher education, the Napster controversies brought these issues into fresh, powerful, and ultimately enduring combination. In the process, they established the rough contours of the IP micro–regimes that we find in place on American college campuses today.

 

++++++++++

Mapping IP micro–regimes in higher education networks

In the campaign against alleged copyright infringement through file–sharing, universities played and continue to play a crucial role. In a 2006 survey of IP policies in American higher education, almost 70 percent of responding institutions said that they engaged in community–wide efforts to increase education around copyright issues. More than 80 percent imposed some kind of penalty on alleged copyright infringers. Efforts that started as simple bandwidth management practices due to Napster have grown into full–blown educational initiatives in many institutions, with production of videos explaining copyright (e.g., University of Richmond School of Law [5] and the University of Wisconsin a [6]); programs alerting students when they are using applications that could lead to copyright infringement [7]; seminars and lectures to educate students and faculty about copyright [8]; and, penalties, academic and financial, assessed to students found to be infringing copyrights [9].

As the above list of measures will suggest, arguably the most distinctive feature of the intellectual property regimes enforced through higher education networks is their diversity, constituted by the range and variable application of the several types of sanctions available to campus officials and network administrators. This range stems from what social theorists would identify as the unusually “total” character of university life: i.e., the multiplicity and completeness of roles and relations that higher educational institutions maintain vis–à–vis their student populations, and in particular their in–residence populations. Beyond network service providers, universities function as landlords, employers, credentialing bodies, and of course educators. By linking network policy to such “ancillary” functions, universities have added strength and range to their IP enforcement regimes. But the same move has deepened moral ambiguities and concerns around the appropriate role and limits of universities as intellectual property enforcers.

As a general matter, higher educational institutions employ IP sanctions at two general levels — user targeted and generalized (i.e., targeted to students as a body) and of four distinct types — architectural, educational, financial, and academic. These constitute the broad policy set that campus decisionndash;makers draw on in enforcing intellectual property restrictions on campus. The variable implementation of these measures, the range of actions available under each, and their distinctive combinations account for the considerable variation among IP microndash;regimes across American college campuses.

These are summarized in Table 1 below:

 

Table 1.
 SpecificGeneral
Architectural• Permanent or temporary revocation of network access• Blocking or degradation of p2p protocols
• Pre–set daily/weekly quotas on amount of traffic allowed per host or user
Educational• Copyright quizzes to regain network access
• Education sessions in response to take–down notices
•Copyright quizzes to get connected to the network
• Lectures
• Seminars
Academic• Academic probation
• Community service
 
Financial• Levee fines or administrative fees in response to take–down notices• Free or subsidized access to legal subscription music services such as Ruckus

 

Architectural: As noted above, architectural constraints represent arguably the oldest strategy for control of file–sharing traffic on campus. These were first implemented by campus administrators in response to network congestion and IP concerns associated with the sudden rise in peer–to–peer file–sharing in the early 2000s. In their general form, architectural constraints have sometimes taken the form of deliberately imposed bandwidth constrictions, akin to the traffic calming measures deployed on some residential neighborhood streets. A common version of this, dating to the early days of the Napster controversies, is the artificial narrowing of ‘pipes’ in and out of university residences, constraining upload and/or download speeds in ways designed to have particular effect on the larger file sizes and traffic volumes typically associated with P2P activity (but relatively less impact on the lighter applications of most campus users — e–mail, Web surfing, etc.). This has sometimes been accompanied by a move to separate academic from residential networks, to prevent dorm–based congestion problems from spilling over into the academic and business functions of the university. Beyond such global restrictions, campus officials have also sought to cap, or de–prioritize, P2P traffic in a targeted way, putting identified P2P transfers last in the queue for available bandwidth, limiting it to pre–set transfer ceilings (e.g., 50 KBps), or capping transfer rates and/or daily uses on a computer–by–computer basis. This last set of practices is returned to later in this paper.

Such general architectural measures, directed to the student or residential population as a whole, were joined in almost all of the universities contacted in the present study (and 80 percent of respondents to the 2006 Kendall survey) by a series of offender–targeted restrictions, i.e., specific architectural sanctions applied to students in receipt of DMCA take–down notices. The most common form of this were moves to suspend student network accounts for periods ranging from a week to a full academic year (typically in cases of repeat or particularly egregious offenses), or pending student completion of some sort of mandatory copyright education session (as described below). As an alternative to outright suspension, some campuses impose periods of network probation, during which students are restricted to university sites and/or sharply limited network speeds.

These measures have, until recently, maintained at best a fuzzy line between network interests in congestion management and related but distinct concerns around IP enforcement. Under this system, strategies of bandwidth constriction and traffic prioritization have done double duty: to preserve network capacity for other uses, but also to set a curb, ceiling, or general disincentive for file–sharing and other high–bandwidth practices in general (copyright infringing or otherwise). As network capacity expands, along with the range of “legitimate” P2P and other high–bandwidth uses, this useful ambiguity seems likely to go away.

Educational: All of the campuses contacted in the present study included some sort of educational component as a substantial piece of their IP management regimes. Copyright education materials are increasingly featured as part of the orientation of students new to the university, both in campus-wide and residential–specific sessions. Such efforts are also increasingly active in nature, going from recommended Web sites or information sheets inserted into orientation packets to mandatory dedicated sessions and/or quizzes required as part of the network registration process emphasizing the rules and potential consequences of copyright infringement and pointing students to copyright–friendly file–sharing services (e.g., Ruckus, iTunes, etc.). Some campuses have incorporated the use of RIAA–produced “Campus Downloading” Web sites and videos into their educational efforts [10]. Critics have questioned the accuracy and completeness of the information provided in the “Campus Downloading” campaign (Sandoval, 2006).

Universities have also started experimenting with more targeted general education campaigns. Central Washington University, for example, requires students to take a quiz before they are allowed access to the residential network [11]. University of Michigan, on the other hand, started a service called “Be Aware You’re Uploading (BAYU)” in October 2007 to notify on-campus residents via e–mail every time they are seen uploading data using a peer–to–peer protocol. The BAYU system makes use of DPI technology to detect machines that are uploading data and then correlates the machine information with users that registered those machines [12]. BAYU does not inspect the content of P2P transfers. The detection of a P2P connection is used to notify the corresponding user. As such, BAYU is targeted towards all users of P2P applications, be they for legitimate purposes or otherwise.

Beyond such generalized measures, almost all of the campuses contacted in this study included a mandatory education component targeted at alleged copyright offenders, often a prerequisite for reconnection to the network following account suspension. In some instances this has taken the form of in–person information and testing sessions, led by students or networking staff and bringing together students recently identified under DMCA takedown notices. Other campuses have moved this process online, with alleged offenders required to review copyright rules and the institution’s acceptable use policies and pass an online quiz before network account privileges are restored.

While such educational efforts have become an increasingly central aspect of responses to illegal file–sharing concerns on campus, there remain significant doubts about its effectiveness (including among some of the campus officials interviewed in the course of our study). In its crudest form, like most such ‘just–say–no’ campaigns, it tends to treat copyright infringement as a simple information problem — i.e., that given adequate access to ‘the facts’ about illegal file–sharing, students engaged in file–sharing practices will be induced to stop. But this represents only a part, and arguably the smaller one, of the body of likely infringers. As one campus official noted, broad educational efforts may help in reaching students genuinely unaware of the rules surrounding copyright, but these tend to be a shrinking minority of any incoming class. A much larger segment, he notes, are generally aware of copyright rules but choose to disregard them, whether for reasons of convenience, habit (including long histories of file–sharing activity prior to arriving on campus, and which their off–campus friends continue), or political opposition to the copyright regime in general.

Academic: In addition to short– to medium–term network suspensions, academic sanctions ranging from community service to academic probation to suspension or outright expulsion (in rare and repeat cases) constitute the most common form of punishment brought to bear on copyright infringing file sharing on campus. In some cases, academic proceedings are instigated upon receipt of the first DMCA take down notice; in others, they are reserved for second or repeat notices. Academic penalties tied to copyright abuse are generally indistinguishable from other causes for academic review (poor performance, plagiarism, etc.) and are managed and remain on the student’s record in the same general form. This means that copyright–related sanctions can and do impact on other causes of student review, and can count as second or third strikes for students already on probation for other reasons (and vice versa, i.e., copyright infringement by students on academic probation can be handled differently than that attached to students with an otherwise ‘clean’ record). The office of the dean of students, which on many campuses has ultimate and considerable discretion on disciplinary matters, typically assigns academic penalties; anecdotal evidence collected during our study suggested that there is enormous range in the form and severity of such punishments, including within the same institution or university system. A smaller number of schools in our study included some form of student review body as an alternative or additional site for handling copyright–related disciplinary hearings.

Financial and other measures: A small number campuses in our study (and 13 percent of respondents to the 2006 Kendall survey) reported imposing some sort of financial penalty on students receiving DMCA complaints. Stanford University, for example, imposes an escalating schedule of financial penalties for students in receipt of confirmed takedown notices, increasing in severity with each successive offense to a maximum of US$1000 [13]. Michigan Technological University, on the other hand, charges a US$100 administrative fee for each allegation along with requiring the student to attend a workshop on ethical decision–making [14]. Beyond financial penalties, a small number of campuses (2.5 percent) in the Kendall survey reported instances in which students had been evicted from campus housing as a result of file–sharing related to IP or other network policy violations. None of the institutions interviewed in our study, however, imposed autonomous financial penalties (i.e., independent of those sought under the RIAA’s pre–litigation settlement strategy), or made continuing eligibility for housing contingent on current or past records of intellectual property conduct.

Additionally, a smaller number of universities have experimented with institution–wide subscriptions or subsidies to legal music services in a bid to channel student file–sharing activities along more copyright–friendly paths. While results from early experiments in this area appear to be mixed, such efforts to incentivize and channel legal behavior stand in stark difference to financial penalties aimed at curbing alleged illegal activity. They also constitute an important (and controversial) provision of the Higher Education Act of 2008 discussed later in this paper.

Finally, it should be noted that a small number of universities (five percent) in the 2006 Kendall survey, though none among our more recent set, imposed no penalties at all for alleged copyright infringement.

The variety of enforcement measures noted above carries important and complex implications for local policy and decision–making processes. As indicated above, a relatively large number of institutional actors are involved in decisions around intellectual property and file–sharing practices on campus, from residential network and campus–wide IT administrators to academic deans, student government, faculty representatives, and university lawyers. This can lead to coordination problems between various actors in the regime — e.g., between residential or campus network officials charged with confirming alleged copyright infringements and managing network suspension and reconnection processes vs. faculty representatives or academic deans for whom copyright infringement constitutes a small and sometimes unwelcome part of a much larger portfolio. The many possible configurations of campus–based intellectual property regimes extend to the identification of the campus DMCA agent (the entry point for all complaints around alleged copyright abuse emanating from campus). In some institutions in our study, this position was assigned to mid–level employees in the IT or user advocate department; in others, the designated DMCA agent was located at the department director or even vice–provost level.

Beyond coordination costs, campus IP regimes impose significant and often resented burdens on university units and personnel tasked with tracking, verifying, managing, and responding to reported copyright abuses. Network officials interviewed in the course of this study report spending from half to one or more full–time equivalent employees on tracking DMCA complaints alone, independent of costs added as the process moves into the academic system. An earlier study by Illinois State University calculated the costs of responding to copyright infringement claims at US$76 per incident, rising to US$146 for second claims (Greenfield, 2006). This has led to widespread interest in streamlining the DMCA process, including through various forms of automation. Columbia University, for example, has implemented a system promising to fully automate its DMCA process “from intake of complaint email, validating complaint, converting IP/Time to MAC address, Ticket generation, Capture & verification of student, Copyright Quiz and finally, report to appropriate dean” (Rosenblatt, 2008). Beyond cost and issues of privacy, university procedures around network traffic tracking may also be impacted by the structure of safe harbor provisions under the DMCA, which hold institutions blameless for infringing content of which they have no prior knowledge. Like the treble damage provisions associated with “willful infringement” under patent law, this provision builds in a profound disincentive to knowledge, which, we surmise, may have real and direct impact on the architectural choices and data practices (logging, retention policies, etc.) of university networks; under prevailing interpretations of the DMCA, it is simply better not to know [15].

Most fundamentally, perhaps, university responses to the file–sharing controversies implicate deep questions of institutional goals and priorities. As Kent Wada (2008) notes, campus–level policies around file–sharing and intellectual property can be directed to maximize any (but not all!) of a number of goals: minimizing workload in processing DMCA claims; managing bandwidth consumption; limiting the institution’s legal or reputational risks; promoting awareness and behavioral change among students; protecting students from liability or undue process; protecting privacy and academic freedom; combating the sometimes questionable tactics of the entertainment industries; or proactively shaping the national copyright policy debate in more open and progressive directions. Choices to maximize some of these goals may jeopardize others — for example, principled stances against pre–settlement letters (discussed later in this paper) that expose individual students to additional legal costs and risks; or decisions to minimize institutional costs and risks that lead to perhaps overly broad compliance and acquiescence to entertainment industry demands.

The result to date has been a deep ambivalence in campus IP regimes: campus officials discharge their responsibilities to the limits imposed under the DMCA (and in light of the ongoing congressional lobbying efforts of the RIAA, MPAA, and other copyright industries), but express significant doubts about the sustainability of the business models and legal strategies underpinned by the current IP framework. They may also regard it as a costly and unwelcome distraction from the core work of the university, detracting from or even antithetical to the institution’s function in the transmission of knowledge. Here again, we see considerable variation in both the form and the spirit of IP regulation at the institutional level, with different campuses (and different individuals within campuses) more and less enthusiastic guardians and enforcers of the claims of IP rights holders.

 

++++++++++

Changes and challenges in campus IP micro–regimes

The above description represents an uneasy compromise whose basic outline began to take shape in the wake of RIAA challenges to Napster and other file–sharing services on campus: campus officials would respond to the complaints of aggrieved copyright holders through the procedures laid out under the DMCA, but would not in general independently or proactively monitor network traffic for IP abuses, save for ancillary concerns around the network congestion P2P file–sharing (legal or otherwise) sometimes produced. A fair image of this stance — borne out in general by our interviews with campus officials and network administrators — would be that of be that of the reluctant enforcer, prosecuting alleged illicit activities to the minimum required by law, but with no great enthusiasm for the process (and occasional resentment at the expense in time and resources imposed by such enforcement activity). This stance has remained more or less consistent across the decade following the first Napster controversies, through strategic shifts on the part of the copyright industries, through successive determinations of legality and liability surrounding online file–sharing practices and through the ongoing evolution and restructuring of campus networks themselves.

At the time of writing, however, the stability of this regime is under challenge on multiple fronts, which may substantially alter the level and manner of concern applied to IP infractions associated with campus–based file–sharing.

The settlement letter controversies

As the RIAA and other rights holder organizations refocused their legal efforts on P2P users in addition to service providers starting around 2003, network administrators and university officials were faced with new sorts of policy questions and challenges. These often involved some kind of balance or trade—off between the competing institutional objectives described above: risks, costs, student protection, etc. They also went above the minimal requirements imposed under the system of DMCA notices and takedowns. Under the compromise established by the DMCA, universities were indemnified against legal risk as long as they acted in good faith in responding to and removing copyright infringing materials held on campus networks (this is the heart of safe harbor). Importantly, the system of take–down notices and responses that resulted required no specific knowledge of individual users on the part of complainants: rather, RIAA search services identified infringing content, tracked these to specific IP addresses, and handed off the complaints (in the form of take–down notices) to designated on–campus DMCA agents, who would manage the process from there.

With the move to an end–user legal strategy — where the individual file–sharer, rather than hosting network, became the primary legal target — the traditional insulation or anonymity of individual users was tested. Following early and unsuccessful RIAA efforts to secure the names (rather than just IP addresses) of individual users from network providers (defeated in the 2005 RIAA v. Verizon decision), rights holders adopted the strategy of filing “John Doe” lawsuits against anonymous users (identified by IP addresses), which would trigger a subpoena process forcing disclosure of actual identities. This remained, however, a relatively time–intensive and controversial practice, expensive both legally and in public relations terms. In February 2007, the RIAA extended this strategy by sending pre–litigation settlement letters to alleged copyright infringers before actually filing suit (RIAA, 2007). These letters are not notices informing users of an actual lawsuit brought against them, but rather a letter that states that the copyright holder is intending to sue the user and gives the user an option to settle the complaint before the actual lawsuit is filed (Marco, 2007). Because the rights holders were barred under RIAA v. Verizon from securing the names of subscribers directly, these letters were sent to educational institutions instead.

University officials receiving these letters faced a complex and challenging dilemma: should they pass the letters on, acting as willing enforcers for what many of them considered to be dubious and abusive legal threats against their students? Or should they withhold the letters, upholding a principled stance at the institutional level that might nonetheless expose individual students to heightened legal risk (by denying them the less-expensive option of settling)? In practice, universities have split on the question. Some, like MIT and the University of Michigan, have forwarded settlement letters to the students responsible for the identified IP addresses (Mitchell, 2007; Semenkovich, 2007). Others, such as the University of Wisconsin and the University of Maine, have refused to forward the pre–litigation settlement letters (Penzenstadler, 2007; Reaves, 2007). Still others have sought third ways in the settlement letter dilemma. For example, the University of Central Arkansas assigns random IP addresses to users when they connect to the network and does not keep logs of the tie–in between users and IP addresses and as such is not able to conclusively determine the person behind the IP address in the RIAA pre–litigation settlement letter. This tactic makes it impossible for the university to determine the party responsible for a particular IP address and has lead to dismissal of a lawsuit filed in the U.S. District court against 27 John Does with University of Central Arkansas IP addresses (Millar, 2008).

The differing responses from educational institutions highlight the fine balance they try to maintain between acting in the best interest of their students and avoiding becoming an extension of the RIAA pre–litigation arm.

Comcast and network neutrality

One of the themes that emerged from our interviews with leading institutions around the nation was the lessening of the concern around the amount of bandwidth consumed by peer–to–peer applications. In general, it seemed that as universities have gotten access to more bandwidth, they are less concerned about peer–to–peer applications eating up chunks of that bandwidth. However, the availability of additional bandwidth has not prevented institutions from implementing traffic shaping, throttling, de–prioritization or other sorts of architectural measures. Overall, as noted above, universities continue to employ network management practices that involve usage of throttling and bandwidth constricting technologies. The origins of this paradox could possibly be found in the unwillingness of campus policy makers to disturb solutions already in place, including ones that may not be necessary anymore.

Surveys of university network management practices conducted by ResNet and Campus Computing show widespread use of technologies to block or otherwise hinder peer–to–peer traffic flows. As noted earlier, roughly three–quarters of respondents to the 2006 ResNet survey (and a similar proportion in our own more recent fieldwork) have imposed brakes or barriers on peer–to–peer traffic at least some of the time. Most of the bandwidth management products on the market today, supplied by vendors like Allot Communications, Blue Coat, Cisco, NetEqualizer, and Sandvine, employ some form of deep packet inspection (DPI) technology to allow them to better recognize each traffic flow and its associated protocol. This goes well beyond simple port detection and blocking, the preferred response of network administrators to excessive traffic in the early days of Napster. As P2P protocols have evolved and became more decentralized and port agnostic, DPI has become a commonly used tool to identify traffic flows on the network. The bandwidth management products on the market today also provide a wider and more sophisticated range of responses beyond simple blocking. These range from assigning priority levels by traffic type, to limiting bandwidth allocated to specific users, to blocking specific traffic classes altogether. This allows, for example, a university with a one–gigabit general network connection to cap cumulative P2P traffic (i.e., across multiple sites and protocols) at specific percentage thresholds (e.g., no more than five percent of total network load). These levels can themselves be adjusted to reflect the sharply diurnal profile of networking needs, for example, with P2P traffic allowed to rise in off–business hours.

Relatively efficient as a traffic management technology, the results of such activity are also troublingly similar to the peer–to–peer protocol degradation controversially practiced by Comcast in 2008. Following widespread complaint by Comcast customers around transfer speeds and basic functionality of P2P applications, the Federal Communications Commission launched an inquiry. On 1 August 2008, the Commission issued a Report and Order that sanctioned Comcast for its degradation of peer–to–protocols, ordering it to “disclose the details of its discriminatory network management practices to the Commission”, set up a compliance plan to fix the problem, and outline its new practices to the FCC and the public at large by the end of 2008 (Lassar, 2008; FCC, 2008).

In the months leading up to the FCC decision, the National Cable and Telecommunications Association (NCTA, 2008) submitted a brief to the Commission drawing explicit comparisons between Comcast’s practices and the allegedly similar (but unsanctioned) traffic shaping practices in place at universities across the country. Urging regulatory parity, the filing asked the FCC to apply the same rules to educational institutions as it would to Comcast: “If temporarily delaying P2P uploads to prevent congestion is deemed to somehow violate the principles of the Commission’s Internet ‘policy statement’, then surely the more severe outright prohibitions on P2P usage imposed by wireless carriers and by colleges and universities must violate them as well” [16]. University advocates following the Comcast hearings contested this analogy. A brief filed by EDUCAUSE pointed out the significant differences between the selective and institutionally closed world of university networks and the necessarily open world of commercial ISPs serving a broad range of customers. It also questioned NCTA’s analogy on jurisdictional grounds, arguing that in contrast to providers of public broadband services, the FCC has no statutory authority (direct or ancillary) over the networks owned and run by the nation’s colleges and universities (EDUCAUSE, 2008).

While no one has yet filed a complaint against educational institutions for their traffic shaping, tiering, and packet inspection practices (and the NCTA’s specific claim went unaddressed in the Commission’s eventual ruling), the incident does raise the potential for challenges to current campus–based IP regimes on network neutrality grounds. Under some strong versions of this idea, all network management practices could constitute a violation of Net neutrality. This is especially true of Net neutrality positions treating all Internet connections as “dumb pipes” with no discernment, prioritization, or discrimination in cost or delivery (a clear relative of common carriage principles with long roots in voice telephony). If implemented (whether through public law, actions by the FCC, or pressure at the campus level), such a position could seriously undermine most of the architectural constraints currently employed by campus network administrators. With seven separate bills touching on Net neutrality since 2006, the issue has clearly captured the attention of at least a subset of Congressional lawmakers. But it remains uncertain which, if any, version of the network neutrality position will make it to law. In addition to possible Congressional action, FCC chairman Julius Genachowski requested the inclusion of two new principles, “nondiscrimination” and “transparency”, to the FCC’s existing “four freedoms” in its Broadband Policy Statement. Furthermore, the requested changes would also change the principles into FCC rules to remove any ambiguity ISPs may have about their enforceability (Anderson, 2009). The precise import of the FCC’s Comcast ruling also remains unclear. One way of reading the Commission’s decision is as an attack not so much on discrimination per se, but on the failure by Comcast to publicly disclose what they were doing. Regardless of the long–term future of Net neutrality legislation and the questionable linkage between commercial ISPs and campus networks, this ‘weaker’ reading of the Comcast ruling may carry important lessons for the transparency of campus network operations. At very minimum, network management practices in place at educational institutions will need continuous re–evaluation in the face of increasing availability of bandwidth and concerns about the selective blocking of network protocols.

Shortly after the FCC ruling, Comcast filed suit against the agency in the U.S. Court of Appeals for the District of Columbia. The Court ruled against the FCC, arguing that the agency had exceeded its regulatory authority and questioning the validity of the agency’s net neutrality ‘principles’ as a basis for regulatory action (Comcast v. FCC, 2010). In response to this setback, the FCC has explored a variety of regulatory alternatives, including reclassification of Broadband Internet Service Providers as a “telecommunication service” from their current designation as an “information service” (Genachowski, 2010; Owen, 2010). While the reclassification and wider network neutrality questions remain very much unresolved at the time of writing, it is clear that network neutrality and like principles remain very much part of the broader telecommunications debate moving forward — and that such questions may pose additional challenges, in law or principle, to the network management practices currently in place on university campuses across the country.

The Higher Education Opportunity Act of 2008

The Higher Education Opportunity Act of 2008 shows every sign of becoming the latest battleground between universities and copyright holders around questions of IP violation and file sharing activities. Within days of the bill’s introduction in the U.S. House of Representatives on 9 November 2007, controversy emerged around its language and provisions for what it terms “campus–based digital theft protection.” Anne Broache (2007a; 2007b) of ZDNet News described the bill as a “Hollywood–backed spending bill requiring universities to consider offering ‘alternatives’ and ‘technology–based deterrents’ to illegal peer–to–peer file sharing” [17]. Eric Bangeman of Ars Technica suggested that Section 494 of the bill should have been more aptly named “Motion Picture and Recording Industry Subsidies” instead of “Campus–Based Digital Theft Prevention” [18]. Articles titled “New bill would punish colleges, students who don’t become copyright cops” (Bangeman, 2007) and “Download A Song — Lose Your Loan” (Mann, 2007) reflected the concerns and lobbying efforts of organizations ranging from EDUCAUSE and the Association of Computing Machinery (ACM) to a variety of student–based initiatives springing up on campuses around the country. Against such opposition, the bill was signed into law on 14 August 2008.

At issue for these groups were two particular provisions in the Act: first, a requirement for universities to develop more aggressive programs to combat illegal sharing of copyrighted materials on campus, including through investment in “technology–based deterrents”; and second, an explicit call for a more aggressive program of university support for “legal alternatives.” Critics of the deterrence clause argue that it will draw universities into a prolonged, expensive, and ultimately unwinnable technological escalation with successive generations of file–sharing technology. In a letter sent to key Congressional committee members, the Association for Computing Machinery (ACM) weighed in against the deterrence language, noting that “obfuscation techniques — such as introducing ‘noise’ to packets — create an inevitable, and expensive, arms race of measure and counter–measure between filters and infringers,” a race that “will never be won by the side seeking to filter” (ACM, 2008). Critics also pointed out that the Act made no specific mention of how the costs of deterrence are to be covered; Inside Higher Ed’s Kenneth Green hypothesized that these would simply be passed on to students “either as increased tuition or as supplemental student fees. And then Members will, of course, complain loudly about the rising cost of higher education, a concern that forms the underlying premise of the overall Higher Education Act bill!” [19]. Reluctant to bear these costs (and dubious of the long–term viability of deterrence anyway), universities have instead attempted to refocus the debate on education and appropriate incentives in fostering behavioral change. As argued by Greg Jackson from the University of Chicago, “We must educate people to understand why certain behaviors are counterproductive for their own community and economy. If we do that together — by which I mean owners, publishers, transmitters and users — collective good will trump individual malfeasance” [20]. Finally, in rough parallel to the widely noted failure of Digital Rights Management (DRM) technologies to accommodate fair use exceptions, it remains unclear how available deterrence techniques in the peer–to–peer space will distinguish between lawful and unlawful uses of file–sharing. Making this distinction adds another level of complexity to the technological solution and is sure to add additional costs to go with that complexity. Most generally, critics note, putting up technology–based deterrents to prevent unlawful file–sharing does not address the root cause of the problem, nor does it leverage the role of universities as educational institutions to teach their students about right and wrong, lawful and unlawful behavior.

The other requirement in the Higher Education Authorization Act for responding to unauthorized distribution of copyrighted material is providing “to the extent practicable ... alternatives to illegal downloading or peer–to–peer distribution of intellectual property”. As critics note, the idea of providing legal alternatives such as Ruckus, Napster and Cdigix to students as a means to combat unauthorized distribution of copyrighted content is not new. As far back as 2003, universities were working with the recording industry to offer legal music services to students at a discounted price or even for free. John Borland (2003a) of CNET News has reported on an effort involving university officials and the recording industry to bring subsidized subscription based music services to campuses nationwide in August of 2003. The effort resulted in Cornell University offering the Napster service to its students about 12 months later, to notably mixed reviews (complaints centered on the service’s limited playlist and incompatibility with the Apple iPod). An alternative subsidy model at the University of California Berkeley fared similarly poorly; despite an 80 percent discount that made Napster available at a cost of US$2.00/month, only 1,000 students out of the 31,000 strong student population bothered to sign up (Jefferson, 2004). Similar but more recent experiments in the “legal alternatives” line have done little better. In May 2008, The Daily Princetonian (Princeton’s independent student newspaper), reported on the University’s brief but ultimately failed relationship with Ruckus, a free music subscription service in the broad Napster lineage. Here again, questions of playlist and iPod compatibility (now at 71 percent of the personal MP3 player market) loomed large (Eshleman, 2008).

Coupled with such problems of non–adoption, and perhaps partly explaining them, students have also shown deep discontent with institutional music subscriptions on resource and/or broadly political grounds. Administrators at Penn State, for example, have experienced significant push–back against its legal alternatives strategy in the form of organized student opposition to its University–wide Napster subscription. As argued by Penn State senior Joe Jarzab (quoted in CNET News), “The money I pay could go to much better things such as rebuilding the network or better lab equipment ... Almost every single student I have talked to is outraged that their money is going to a program that they don’t even want ... (and that) their money is being sent to the music industry without their consent.” In response, Jarzab and other student activists have posted fliers on Penn State’s Erie campus protesting the deal and its use of their IT fees, which ordinarily go toward funding networks, computers and other campus technology services (Borland, 2003b).

Such concerns, broadly replicated in our interviews with campus officials, raise considerable doubt about the efficacy and/or affordability of the copyright–related provisions outlined under the Higher Education Opportunity Act. For such officials, neither the “deterrence” nor “legal alternatives” provisions hold great hope for long–term success in the ongoing effort to end or channel illegal file–sharing on campus. Both provisions, moreover, promise to significantly increase the already onerous costs of maintaining and updating current IP management regimes on campus, and may push universities further into the sort of active policing role vis–à–vis on–campus file–sharing activity that they have historically been reluctant to assume.

On 29 October 2009, the U.S. Department of Education published the implementation guidelines for educational institutions based on the Higher Education Opportunity Act of 2008 (Federal Register, 2009), directing individual institutions to develop and implement “written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network without unduly interfering with the educational and research use of the network” [21]. The plans were to include the following:

— The use of one or more technology–based deterrents;

— Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material, including the consumer information an institution must provide, upon request, in accordance with 34 CFR 668.43(a)(10) (described below). These mechanisms may include any additional information and approaches determined by the institution to contribute to the effectiveness of the plans, such as including pertinent information in student handbooks, honor codes, and codes of conduct in addition to e–mail and/or paper disclosures;

— Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and,

— Procedures for periodically reviewing the effectiveness of plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. It is left to each institution to determine relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance will be, including those that prohibit content monitoring. [22]

On the surface, the new requirements may not amount to much more than an elaborate exercise for generating more documents and plans. The implementation guidelines around deterrents, for instance, would appear to provide considerable leeway. For example, as per the U.S. Department of Education, “technology–based deterrents include bandwidth shaping, traffic monitoring, accepting and responding to Digital Millennium Copyright Act (DMCA) notices, and commercial products designed to reduce or block illegal file sharing” [23]. As noted above, the building blocks for such a system of technology-based deterrents are largely in place on American college campuses (and certainly the institutions we studied). Additionally, “accepting and responding to DMCA notices” is already required under the DMCA itself (Wada, 2008), so institutions already following the law presumably don’t have to do anything extra to satisfy the requirements of the HEOA.

More profoundly, we may regard the entrenchment of ‘deterrence’ and ‘legal alternatives’ as upping the ante in the ongoing fight over intellectual property and file–sharing practice on campus. In tying copyright protection directly to resources central to the core mission of the university — notably federal student aid and research dollars — the HEOA adds enormous leverage to the claims of copyright holders dissatisfied with the performance of campus administrators in limiting and managing copyright abuse on campus. It also establishes a (relatively) clear and specific legislative intent, which may form the basis for future legal challenges to the present system of campus–based IP protection and file–sharing. In the longer history of relations between IP rights holders and higher educational institutions, this would appear to constitute a significant — and problematic — ratcheting up.

 

++++++++++

Conclusion

At the time of writing, the highly varied and never comfortable intellectual property regimes in place at university campuses around the country face severe and arguably catalytic challenges, both internally and externally. Understood as a matter of strategy, legal, institutional, and legislative responses to intellectual property concerns around campus–based file–sharing would seem to reflect a number of principles. From the standpoint of RIAA, MPAA, and similar rights–holder organizations, these might include: ‘hitch your wagon to a larger star’ (seen in the successful effort to introduce specific pro–copyright requirements into the HEOA of 2008); ‘flip the default’ (in the way that deterrence measures appear poised to follow DRM technologies before them in failing to account architecturally for the distinction between lawful (e.g., fair use) and unlawful uses; and, ‘redistribute risk’ (seen, for example, in the complex moral and strategic calculus imposed by the RIAA’s turn to settlement letters for alleged infringers). For university and network administrators, the lessons are arguably different: ‘comply and protect’ (fulfilling DMCA safe harbor obligations while shielding students from undue legal risk); ‘perform good faith’ (in the ongoing cultural and legislative battle over the appropriate shape and nature of intellectual property regimes on campus, including the role of universities as IP enforcers); and, possibly, ‘don’t know too much’ (seen, for example, in choices around traffic monitoring and data retention that may shape present and future obligations to act on campus–based file–sharing activities).

The response to these challenges will be conditioned by many factors, and will draw no doubt from the specific institutional histories and resources described in earlier sections of this paper. They will also play into a larger set of debates about the appropriate shape and limits of property, freedom, cultural production, and the nature of the university in a densely networked world. Straddling a middle ground between the worlds of formal case law and legislation, and the more emergent world of online culture, practice, and beliefs, intellectual property micro–regimes at campuses around the country may play an important role in shaping the outcome of these broad social questions. End of article

 

About the authors

Steven J. Jackson is an Assistant Professor in the Department of Information Science at Cornell University.
E–mail: sjj54 [at] cornell [dot] edu

Alok Vimawala holds a Masters of Science in Information from the School of Information, and is a Senior Network Administrator, at the University of Michigan.

 

Acknowledgements

We wish to thank Tarleton Gillespie and Kent Wada for their helpful comments on an earlier version of this paper.

 

Notes

1. For purposes of comparison, consider Verizon’s ultimately successful defense against the RIAA’s efforts to subpoena Verizon subscriber names behind alleged copyright–violating Internet Protocol addresses, in RIAA v. Verizon (351 F.3d 1229).

2. These figures can be found in records contained within the Lobbying Disclosure Act Database, available at http://soprweb.senate.gov. Over the same period the RIAA spent US$150,914 and the MPAA US$306,319 on lobbying activities in California (http://cal-access.sos.ca.gov), and were similarly active in Tennessee, then in process of drafting (and subsequently passing) a bill that assigns Tennessee universities greater responsibility for identifying and fighting campus–based IP violations. Nate Anderson, 2008. “Big content fighting campus P2P by lobbying for state laws,” Ars Technica (11 May), at http://arstechnica.com/news.ars/post/20080511-big-content-fighting-campus-p2p-by-lobbying-for-state-laws.html, accessed 24 October 2010.

3. See, for example, Charles Mann, 2000. “The heavenly jukebox,” Atlantic Monthly (September, digital edition); Janelle Brown, 2000. “The jukebox manifesto,” Salon.com (13 November), at http://www.salon.com/technology/feature/2000/11/13/jukebox, accessed 13 June 2011. An excellent account of the Napster and digital rights management controversies can be found in Tarleton Gillespie, 2007. Wired shut: Copyright and the shape of digital culture. Cambridge, Mass.: MIT Press.

4. For a fuller account of the Napster controversies, the shifting legal and legislative strategies of groups like the RIAA and MPAA, and the wider cultural consequences of the online copyright debates, see Tarleton Gillespie, 2007. Wired shut: Copyright and the shape of digital culture. Cambridge, Mass.: MIT Press.

5. “WHAT DO YOU THINK?” (documentary), at http://law2.richmond.edu/ipi/media/UofR_IP_high.mov, accessed 13 June 2011.

6. University of Wisconsin Office of Campus Information Security, at http://www.cio.wisc.edu/security/fileSharingVideo.aspx, accessed 13 June 2011.

7. University of Michigan BAYU: “Be Aware You’re Uploading,” at http://bayu.umich.edu, accessed 13 June 2011; Northwestern University BAYU: “Be Aware You’re Uploading,” at http://www.it.northwestern.edu/security/nubayu/index.html, accessed 13 June 2011.

8. University of Michigan Library, “Copyright Events,” at http://www.copyright.umich.edu/events.html, accessed 13 June 2011.

9. University of Michigan, “Housing Policy and Procedures,” at http://www.housing.umich.edu/reshalls/rescomp-policies, accessed 13 June 2011; Stanford Residential Computing: Information and News: “File–sharing and copyright law,” at http://rescomp.stanford.edu/info/dmca/#consequences, accessed 13 June 2011.

10. “Music Download Services for Texas Tech University Students,” at http://www.ttu.edu/legalmusic, accessed 13 June 2011; Penn State University, “Campus Downloading,” at http://campusdownloading.psu.edu/resources.htm, accessed 13 June 2011.

11. Central Washington University, “Resnet Registration Checklist,” at http://www.resnet.cwu.edu/registration.php, accessed 13 June 2011.

12. University of Michigan, “BAYU: Be Aware You’re Uploading,” at http://bayu.umich.edu, accessed 13 June 2011.

13. Stanford Residential Computing, “Information and news: File–sharing and copyright law,” at http://rescomp.stanford.edu/info/dmca/#consequences, accessed 13 June 2011.

14. Michigan Tech University, “DMCA Procedures,” at http://www.tc.mtu.edu/HEOA_Compliance/DMCA.php, accessed 13 June 2011.

15. This is a nice example pointing to the need for what historian of science Robert Proctor has identified as “agnotology,” or the systematic production of ignorance. See Robert N. Proctor and Londa Schiebinger (editors), 2008. Agnotology: The making and unmaking of ignorance. Stanford, Calif.: Stanford University Press.

16. NCTA, 2008, p. 3.

17. Broache, 2007b, para. 1.

18. Bangeman, 2007, para. 1.

19. Green, 2007, para. 13.

20. Guess, 2007, para. 9.

21. Madzelan, 2010, para. 3.

22. Madzelan, 2010, para. 4.

23. Wada, 2008, para. 38.

 

References

A&M Records v. Napster, Inc. 2001. 239 F.3d 1004, 9th Cir.

Nate Anderson, 2009. “FCC Chairman wants network neutrality, wired and wireless,” Ars Technica (21 September), at http://arstechnica.com/tech-policy/news/2009/09/fcc-chairman-wants-network-neutrality-wired-and-wireless.ars, accessed 24 October 2010.

Associated Press, 2008. “MPAA admits college students not biggest movie pirates,” Fox News (24 January), at http://www.foxnews.com/printer_friendly_story/0,3566,324992,00.html, accessed 7 June 2010.

Associated Press, 2003. “Elderly man, schoolgirl, professor among file–swapping defendants,” USA Today (9 September), at http://www.usatoday.com/tech/news/techpolicy/2003-09-09-riaa-defendants_x.htm, accessed 24 October 2010.

Association for Computing Machinery (ACM), 2008. “Letter to Congress” (15 April), at http://usacm.acm.org/ip/details.cfm?type=Letters&id=150&cat=25&Intellectual%20Property, accessed 13 June 2011.

Eric Bangeman, 2007. “New bill would punish colleges, students who don’t become copyright cops,” Ars Technica (11 November), at http://arstechnica.com/news.ars/post/20071111-new-bill-would-turn-colleges-into-copyright-cops.html, accessed 24 October 2010.

John Borland, 2003a. “Colleges explore legal Net music setups,” CNET News (1 August), at http://news.cnet.com/2100-1027_3-5059030.html, accessed 24 October 2010.

John Borland, 2003b. “Penn State students blast Napster deal,” CNET News (6 November), at http://news.cnet.com/2100-1027_3-5103918.html, accessed 24 October 2010.

Anne Broache, 2007a. “Democrats: Colleges must police copyright, or else,” ZDNet (9 November), at http://news.zdnet.com/2100-9588_22-175114.html, accessed 24 October 2010.

Anne Broache, 2007b. “Anti–P2P college bill advances in House,” ZDNet (15 November), at http://news.zdnet.com/2100-9588_22-176095.html, accessed 24 October 2010.

Comcast Corp. v. FCC, 2010. 600 F. 3d 642, Court of Appeals, Dist. of Columbia Circuit.

EDUCAUSE, 2008. “Ex Parte Re: In the Matter of Broadband Industry Practices, WC Docket No. 07–52” (25 July), at http://net.educause.edu/ir/library/pdf/epo0811.pdf, accessed 13 June 2011.

Electronic Frontier Foundation (EFF), 2007. “RIAA v. the people: Four years later,” at http://w2.eff.org/IP/P2P/riaa_at_four.pdf, accessed 8 June 2010.

Doug Eshleman, 2008. “Ruckus fails to quell University online music piracy,” Daily Princetonian (16 May), at http://www.dailyprincetonian.com/2008/05/16/21218/, accessed 24 October 2010.

Federal Register, 2009. “Final rule; General and non–loan programmatic issues” (29 October), at http://www.ifap.ed.gov/fregisters/FR102909GeneralandNonLoanProgrammaticFinalRule.html, accessed 15 August 2010.

Julius Genachowski, 2010. “The third way: A narrowly tailored broadband framework” (6 May), at http://www.broadband.gov/the-third-way-narrowly-tailored-broadband-framework-chairman-julius-genachowski.html, accessed 7 June 2010.

Tarleton Gillespie, 2009. “Characterizing copyright in the classroom: The cultural work of antipiracy campaigns,” Communication, Culture & Critique, volume 2, number 3, pp. 274–318.http://dx.doi.org/10.1111/j.1753-9137.2009.01039.x

Tarleton Gillespie, 2007. Wired shut: Copyright and the shape of digital culture. Cambridge, Mass.: MIT Press.

Kenneth Green, 2007. “Swiftboating higher education on P2P,” Inside Higher Ed (15 November), at http://www.insidehighered.com/views/2007/11/15/green, accessed 24 October 2010.

David Greenfield, 2006. “Processing DMCA complaints at Illinois State,” Digital Citizen Project, at http://digitalcitizen.illinoisstate.edu/documents/ISUGreenfield%20-%200607%20-%20DMCA%20Process.pdf, accessed 23 September 2010.

Andy Guess, 2007. “Sharing ideas about sharing files,” Inside Higher Ed (6 June), at http://www.insidehighered.com/news/2007/06/06/filesharing, accessed 24 October 2010.

Graham Jefferson, 2004. “More schools offer cheap music downloads for students,” USA Today (12 December), at http://www.usatoday.com/money/industries/technology/2004-12-12-campus-music_x.htm, accessed 24 October 2010.

Jupiter Media Metrix, 2001. “Global Napster usage plummets, but new file–sharing alternatives gaining ground” (20 July) at http://www.nyrock.com/worldbeat/07_2001/072001a.asp, accessed 15 August 2010.

Matthew Lassar, 2008. “FCC spanks Comcast for P2P blocking: No fine, full disclosure,” Ars Technica (1 August), at http://arstechnica.com/news.ars/post/20080801-fcc-spanks-comcast-for-p2p-blocking-no-fine-full-disclosure.html, accessed 24 October 2010.

Daniel Madzelan, 2010. “Institutional requirements for combating the unauthorized distribution of copyrighted material by users of the institution’s network” (4 June) at http://ifap.ed.gov/dpcletters/GEN1008.html, accessed 15 August 2010.

Larisa Mann, 2007. “Download a song — Lose your loan,” Nation (29 November), at http://www.thenation.com/article/download-song-lose-your-loan, accessed 24 October 2010.

Meg Marco, 2007. “The RIAA P2PLawsuit letter sent to college students,” Consumerist (2 March), at http://consumerist.com/2007/03/the-riaa-p2plawsuit-letter-sent-to-college-students.html, accessed 21 June 2010.

Lindsey Millar, 2008. “UCA’s pirates in the clear ... for now,” Arkansas Times (10 July), at http://www.arktimes.com/RockCandy/archives/2008/07/10/ucas-pirates-in-the-clearfor-now, accessed 22 June 2010.

Katherine Mitchell, 2007. “More suits on the way from RIAA,” Michigan Daily (23 March), at http://www.michigandaily.com/content/more-suits-way-riaa, accessed 22 June 2010.

MGM Studios, Inc. v. Grokster, Ltd., 2005. 545 U.S. 913.

National Cable & Telecommunications Association (NCTA), 2008. “Ex Parte Re: In the matter of broadband industry practices, WC Docket No. 07–52” (24 July) at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520035296, accessed 13 June 2011.

Nick Penzenstadler, 2007. “UW warns music sharers,” Badger Herald (19 March), at http://badgerherald.com/news/2007/03/19/uw_warns_music_share.php, accessed 22 June 2010.

Kristen Philipkoski, 1999. “The student jukebox sting,” Wired (9 November), at http://www.wired.com/print/culture/lifestyle/news/1999/11/32444, accessed 23 September 2010.

Michael Piatek, Tadayoshi Kohno, and Arvind Krishnamurthy, 2008. “Challenges and directions for monitoring P2P file sharing networks” (5 June), at http://www.usenix.org/event/hotsec08/tech/full_papers/piatek/piatek_html, accessed 1 August 2010.

Tony Reaves, 2007. “UMS refuses to hand student info to RIAA,” Maine Campus (26 March), at http://mainecampus.com/2007/03/26/ums-refuses-to-hand-student-info-to-riaa/, accessed 22 June 2010.

Recording Industry Association of America (RIAA), 2007. “RIAA launches new initiatives targeting campus music theft” (28 February) at http://www.riaa.com/print.php?id=0BB7A35D-544B-2DD2-F374-4F680D6BAE9B, accessed 8 June 2010.

Joel Rosenblatt, 2008. “Automated DMCA complaint processing,” at https://www.cio.wisc.edu/events/lockdown/08/docs/AutomatedDMCAComplaintProcessingLockdown08.ppt, accessed 13 June 2011.

Greg Sandoval, 2006. “RIAA copyright education contradictory, critics say,” CNET News (30 August), at http://news.cnet.com/2100-1027_3-6111118.html accessed 8 June 2010.

Nick Semenkovich, 2007. “RIAA pre–litigation letters sent to MIT,” The Tech (8 May), at http://tech.mit.edu/V127/N24/riaa.html, accessed 22 June 2010.

Mary Spletter, 2000. “UC will not block Napster on campus” (22 September) at http://www.universityofcalifornia.edu/news/article/19726, accessed 15 August 2010.

Richard Stenger, 2000. “Campuses seek compromise over popular bandwidth hog,” CNN (1 March), at http://transcripts.cnn.com/2000/TECH/computing/03/01/napster.ban/, accessed 15 August 2010.

U.S. Federal Communications Commission (FCC), 2008. “Commission orders Comcast to end discriminatory network management practices” (1 August) at http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-284286A1.pdf, accessed 13 June 2011.

Wikipedia, 2010. “Napster,” at http://en.wikipedia.org/wiki/Napster, accessed 24 October 2010.

 


Editorial history

Received 20 June 2011; revised 23 September 2011; accepted 11 October 2011.


Creative Commons License
“Tightening the Net: Intellectual property micro–regimes and peer–to–peer practice in higher education networks” by Steven J. Jackson and Alok Vimawala is licensed under a Creative Commons Attribution–NonCommercial–ShareAlike 3.0 Unported License.

Tightening the Net: Intellectual property micro–regimes and peer–to–peer practice in higher education networks
by Steven J. Jackson and Alok Vimawala.
First Monday, Volume 16, Number 11 - 7 November 2011
http://www.firstmonday.org/ojs/index.php/fm/article/viewArticle/3649/3072





A Great Cities Initiative of the University of Illinois at Chicago University Library.

© First Monday, 1995-2014.