From Jefferson to Metallica to your Campus: Copyright Issues in Student Peer-to-Peer File Sharing
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From Jefferson to Metallica to your Campus: Copyright
Issues in Student Peer-to-Peer File Sharing 45
The Journal of Technology Studies
Lisa McHugh Cesarini and Paul Cesarini
If nature has made any one thing less gration of digital technologies into American life
susceptible than all others of e xclusive property, has increased the relevance of this body of law
it is the action of the thinking po wer called an and made necessary a broader understanding of
idea, which an individual may exclusively pos- its basis, how it works, and the role it plays in
sess as long as he k eeps it to himself; b ut the the controversies that are shaping how faculty
moment it is divulged, it forces itself into the and students will use technology and informa-
possession of everyone, and the receiver cannot tion in the future. (p. 616)
dispossess himself of it. Its peculiar character ,
too, is that no one possesses the less, because Although the relevance of this topic within
every other possesses the whole of it. He who higher education is clear, interpretations of leg-
receives an idea from me, recei ves instruction islation as well as court decisions have not pro-
himself without lessening mine; as he w ho vided much clarity on the balance betw een fair
lights his taper at mine receives light without use and copyright infringement of digital media,
darkening me. regardless of whether the digital media in ques-
tion was audio, video, or text. In addition, there
--Thomas Jefferson, 1813 has been much disagreement within the higher
education community as well as on individual
When Lars Ulrich, drummer for the rock campuses about the role institutions should pla y
group Metallica, testif ied before Congress about in pursuit of copyright infringers, both intention-
his group's lawsuit against Napster in 2000, al and unintentional, some of w hom may be the
many people who followed copyright issues in institution's own students, faculty, and staff. In a
the music industry were not surprised (Ulrich, 2000 press release written in response to the
2000). Ever since downloading audio f iles Napster lawsuit, officials at Indiana University
became as easy as clicking a fe w buttons on a claimed that “ . . . technolo gy has leaped well
personal computer, charges of copyright ahead of clear legal issues” (Indiana University,
infringement have been alleged and played out 2000) and as such, Napster would be banned
in the courts. The real surprise came when from their campus network until the issue could
Indiana University, Yale University, and the be further investigated. As a result, both Indiana
University of Southern California also were University and Yale were dropped from the suit
named in the suit for allowing students to use once that it was announced that Napster would
their university computer networks to illegally be banned on those campuses as w ell (Carlson,
downloading music f iles. The idea that colleges 2000).
and universities could be held liable for their
students' actions in this way was unsettling at Other campuses effectively banned Napster
the time, and to this day, questions linger about by means such as packet shaping (sometimes
the role higher education should play in this referred to as “traffic shaping” or “traffic engi-
arena from both legal and ethical perspectives. neering”). Regardless of whether a student
attempts to share vacations photos with a friend
Recent court decisions have not provid- or one of Metallica’s latest tracks, the infor ma-
ed any greater insight and the legislative actions tion transmitted over the network is broken
seem as informed by lobbyists as best practices down into small bundles, or “packets,” identi-
on how to actually prevent and deter illegal fied by the type of data. So, b y way of certain
activity while allowing legitimate and potentially types of network management software, these
innovative activity. Kaplin and Lee (2007) clear- packets essentially can be identif ied by their
ly outline the need for students and f aculty in genre: Email traffic, course management traffic,
the higher education community to be infor med general web surfing traffic, and peer-to-peer
and proactive, both individually and collectively, (P2P) file sharing traffic. By deploying a pro-
in these matters: gram such as Pack Shaper or Packeteer, an insti-
tution can manage network traffic by throttling
Until recently, copyright law merited little down the available bandwidth for certain types
attention within the academy, but the rapid inte-of packets, while throttling up the bandwidth for an important factor when considering the legali-
46 other types (SearchNetworking, n.d.). Packet ty of using or downloading digital f iles regard-
shaping has largely become the default method less of whether the user is on a P2P netw ork.
The Journal of Technology Studies
for dealing with P2P f ile sharing in higher edu- Response to two legal suits in 1987 and 1989
cation, but in 2000 it was probably considered a severely restricted the def inition of fair use in
fairly new and obscure technology by end-users unpublished materials to the point of essentiall y
of such networks, and students largely greeted it not allowing any use of the work. Congress
with contempt. At Bowling Green State passed the Copy Amendments Act of 1992
University, for example, photocopied flyers pro- (Kaplin & Lee, 2007), which returned to the
claiming “Save Napster!” were plastered original fair use standards.
throughout the campus, with par ticular emphasis
given to the building that housed the Hilton (2006) asserted that the most disr up-
Information Technology Services department. tive force facing higher education relating to
information technology is that “we live in a
At the time, Napster was the only P2P f ile culture and society that increasingly views the
sharing application, so banning that one applica- world of ideas as pure proper ty” (p. 64). He
tion (either via packet shaping or by other claims we should be very weary of this perspec-
means) was a relatively simple solution. As the tive and cites John Perry Barlow's analogy of
name implies P2P f ile sharing allows individual someone stealing your car versus someone steal-
users to share f iles without a centralized ser ver. ing your idea. If your car is stolen, you cannot
The Napster network added another dimension: use it but if someone steals your ideas, they are
Simply put, users share f iles through an inter- still available for your use. The notion of “ideas
mediary where the network served as a central- as property” is not a recent phenomenon in
ized database (McCormick, 2006; Tech American society. In 1939, noted author and
Encyclopedia, 2008). Since Napster in 2001, futurist Robert Heinlein wrote in his shor t story
numerous applications have existed and used entitled Life Line about the confusion regarding
various protocols for sharing and distrib uting property rights:
files, making it more difficult to restrict on a
campus network. Eight years later, many cam- There has grown up in the minds of cer tain
puses still struggle with the very same issues. groups in this country the notion that because a
man or a cor poration has made a prof it out of
Copyright and Intellectual Property the public for a number of y ears, the government
over the Years and the courts are charged with the duty of guar -
While ultimately the issue of intellectual anteeing such prof it in the future, even in the
property involves legal issues of copyright, face of changing circumstances and contrar y
trademark, and patent laws, this discussion will public interest. This strange doctrine is not sup-
focus on copyright law and the widening gap ported by statute nor common law. Neither indi-
between it and advances in information and viduals nor corporations have any right to come
communication technologies. An important into court and ask that the clock of histor y be
component of copyright law affecting higher stopped, or turned back, for their private benefit.
education is that of f air use, which Kaplin and (p. 21)
Lee (2008) describe as “one of the most misun -
derstood copyright issues” (p. 617). The notion of intellectual proper ty and
copyright issues has been a par t of our legal his-
According to the Copyright Act, four con- tory for as long as the United States has been a
siderations are used to deter mine fair use: (a) country. In the United States Constitution (1787),
the purpose of the use: whether it is for com- Congress is charged with the Copyright Act “to
mercial or educational use, (b) the nature of the promote the progress of science and useful ar ts,
copyrighted work, (c) how much of the work is by securing for limited times to authors and
used in relation to the entirety of the cop yright- inventors the exclusive right to their respective
ed work, and (d) the impact of the use on the writings and discoveries” (art. I, § 8, cl. 8).
potential market or value of the work (Kaplin & According to Kaplin and Lee (2007), the goal of
Lee, 2007). Because the f air use doctrine applies the Copyright Act “simply stated, is to increase
to both published and unpublished works, in knowledge” (p. 616). At first glance, this view
hard copy, on the Internet, or when used as part may seem remarkably consistent with the basic
of an online course (Kaplin & Lee, 2007), this is tenets of higher education, but in the instance ofcopyright issues it often seems at cross pur poses. Internet...” (RIAA, 2003, para. 1). This quote
created so much attention that it became a sor t 47
The phrase in the Constitution “for limited of rally cry for many users of P2P f ile sharing
times” has been the source of much debate as it
The Journal of Technology Studies
applications as well as those students, f aculty,
is applied to the issue of intellectual proper ty and fair use activists who feel the enforcement
rights and fair use of digital media. Some of copyright law has been taken to an extreme.
researchers believe that the timeframe for own-
ership should not be limited. In her 1998 Hilton (2006) believes this type of approach
Congressional testimony, Rep. Mary Bono indi- is excessive and remarks that “as originally
cated that she agreed with her late husband w ho enacted, copyright was designed to balance the
wanted the “term of copyright protection to last limited property rights of the author/creator with
forever. I am informed by staff that such a the long-term rights of the public. The problem
change would violate the Constitution” (Bono, is that over the years, copyright has changed in
1998, para. 3). In her remarks, Bono also quoted ways that have consistently increased the protec-
former actor and Recording Industr y tion granted to authors without providing
Association of America (RIAA) President Jack increased benefit to the public” (p. 66). It is
Valenti who proposed that the ter m for copyright easy to see how such comments by the RIAA,
protection should be “forever less one day” Bono, Valenti, and others, such as the Motion
(Valenti in Bono, 1998, para. 3). Picture Association of American (MPAA), fuel
this ongoing feud which, combined with the rel-
While the RIAA and those it represents ma y ative ease and anonymity of downloading media
feel entitled to the prof its from their work and files, has culminated in the cur rent situation.
the ability to control how their work is used,
many feel the approaches used by the RIAA in Legal Precedence: Clear as Mud
pursuit of illegal downloading are questionable The landmark copyright case related to digi-
and perhaps even illegal. McCormick (2006) tal media was the Supreme Court ruling in Sony
describes the scenario as “college and university Corp. of America v. Universal City Studios, Inc.,
students downloading digital f iles are perceived 464 U.S. 417 (1984). In this case, Uni versal City
as pirates and thieves by the content industry, Studios brought suit against Sony, then a manu-
while the students perceive the recording indus- facturer of Betamax-based video cassette
try as greedy philistines, and thus ignore intel- recorders (VCRs) for copyright infringement
lectual property rights” (p. 682). because the VCR owners were taping movies
and shows off of their televisions. According to
In 2003, the RIAA began suing direct Kaplin and Lee (2007), the Supreme Cour t ruled
infringers of copyrighted audio f iles, creating that Sony was not liable for the infringement of
even more ill will as well as involvement of its customers because “the recorders had sub-
campuses who were requested to turn over the stantial non-infringing uses, namely timeshifting
names of any students accused of violations. of television programming” (p. 620). Further,
Their approach was to identify users inter net the Court ruled that taping a television show and
protocol (IP) addresses and send those users to viewing it later was considered fair use.
their institution as the ISPs. The institution then McCormick (2006) suggested that the United
forwards the pre-settlement letter to the stu- States Supreme Court should revisit its decision
dent/user allowing the student to pay thousands in Sony since the precedent set by this over
of dollars to avoid any further legal action broad ruling in the 1984 case is outdated, yet
(Cornell, 2007). If a student does not settle, then continues to be applied.
the RIAA f iles suit as part of a “John Doe”
case, which results in a subpoena for the institu- Fast forward seventeen years to the next
tion to reveal the name of the student (Cor nell, significant case of copyright involving the use
2007). The RIAA's case was not helped when of media f iles between with A&M Records v.
the following wording was posted on its website Napster, 239 F.3d 2004 (9th Cir. 2001).
and used in many of its media messages: “No McCormick (2006) shared the district cour t's
black flags with skull and crossbones, no cut - view of this case as: “The matter before the
lasses, cannons or daggers identify today's court concerns the boundary between sharing
pirates. You can't see them coming; there's no and theft, personal use and the unauthorized
warning shot across your bow. …Today's pirates worldwide distribution of copyrighted music and
operate not on the high sea b ut on the sound recordings” (p. 689). In this case, A&MRecords alleged that Napster was knowingly sideration based on four f actors: (a) Grokster
48 allowing (and even encouraging) customers to was promoting itself as a means to ille gally
illegally download audio f iles. In 2001, the 9th download media f iles, (b) Grokster targeted for-
The Journal of Technology Studies
Circuit court, based on Sony, rejected Napster's mer Napster users, (c) Grokster made no attempt
defense, which focused on claims of f air use to install f ilters to prevent illegal downloading,
(Kaplin & Lee, 2007, p. 620). The primary dif- and (d) that most of the prof its that would have
ference between Sony and Napster was that gone to distributors who be from acts of copy-
there was no further contact once Sony sold the right infringement (Kaplin & Lee, 2007). The
VCR to a customer, but Napster did have con- Court's decision “did more to muddle the con-
tact with its subscribers and could bar them tributory infringement 'water' than to purify it”
from using the service at any time. According to (McCormick, 2006, p. 719). Hall (2006) ag rees
Hall (2006), “because the centralized inde xing that the Court’s decision only compounded the
system allowed Napster to have actual knowl- confusion and went even further to say that the
edge of specif ic infringement and control over Supreme Court's decision “. . . added more fuel
the infringement, the court found that . . . to the f ire by . . . allowing the existing Sony test
Napster was liable for contributory and vicari- to apply where a product is used to infringe b ut
ous infringement” (p. 390). there is no evidence of intentionally inducing
the infringement” (p. 392).
Shortly after Napster, another case was
heard in the Seventh Circuit Court of Appeals. Legislative Approaches
In Aimster Copyright Litigation, 334 F.3d 643, The Digital Millennium Copyright Act
645 (7th Cir. 2003), the court applied both Sony (DMCA) of 1998 was “the foundation of an
and Napster and found that even though Aimster effort by Congress to implement United States
was used for many noninfringing uses, the pro- treaty obligations and to move the nation's copy-
portion of infringing uses to noninfringing uses right law into the digital age” (DMCA repor t,
was enough that “Aimster was required to prof- n.d.). One provision of the DMCA that applies
fer evidence that its network was actually used to higher education is that of “anti-circumv en-
for . . . the stated noninfringing pur poses to tion” clause which was an attempt to reinforce
avoid contributory liability” (McCormick, 2006, copyright holders' rights by not allowing them to
p. 718). “succumb to the unique threat posed b y digital
technologies” (McCormick, 2006, p. 716).
The next significant case took place in Although this clause was written to protect the
2004, when the 9th Circuit cour t heard MGM rights of copyright holders, some in higher edu-
Studios, Inc. v. Grokster, Ltd., 380 F.3d 1154 cation and those familiar with copyright issues
(9th Cir. 2004). Grokster was a network that view it as a “threat to civil liberties, the free
became popular after the Napster ruling essen- exchange of information, and . . . academic free-
tially ended operations. Grokster's network dom” (McCormick, 2006, p. 716).
merely served as a distributor for its P2P soft-
ware since the f iles shared by its users were not Another relevant provision of the DMCA
indexed in any centralized manner. In its ruling, for institutions of higher education is that of safe
the court did not f ind Grokster liable as a con- harbor (DMCA, n.d.), which can limit the liabil-
tributory infringer that “specif ically contradicted ity of Internet service providers (ISPs). Colleges
the probable noninfringing use standard ar ticu- and universities are considered ISPs and as such,
lated by the Seventh Circuit in Aimster” this safe-harbor status can protect colle ges and
(McCormick, 2006, p. 718). universities from monetary damages awarded if
users of their computer network are found guilty
The plaintiffs appealed to the Supreme of copyright infringement (McCormick, 2006,
Court in MGM, Inc. v. Grokster (Grokster III), pp. 716-717). However, this protection is only
125 S. Ct. 2764 (2005), and e ven requested that extended when ISPs have and enforce a policy
Congress consider legislation that would over- that informs all users of the le gal issues sur-
turn Sony, which as mentioned above has been rounding electronic f iles and terminate from
controversial because much of the le gal and their network anyone who is a repeat offender
technological landscape in this countr y has (DMCA, n.d.).
changed during the ensuing twenty years. In
2005, the Supreme Court vacated the 9th The newest legislation proposed on this
Circuit's ruling and remanded it for fur ther con- topic is the Higher Education ActReauthorization that would actually block feder- business model by purchasing detection and
al financial aid for all students at an institution legal downloading software. According to 49
where a student repeatedly and illegally down- Adrian Sannier, university technology officer at
The Journal of Technology Studies
loads media f iles. The American Council on Arizona State University, in his testimony before
Education (ACE) promptly reacted on behalf of the House Committee on Science and
12 other higher education g roups (ACE, 2008). Technology in June, 2007, colleges and universi-
While the groups were supportive of requiring ties must be careful not to commit institutional
campuses to inform their campus communities funds in antipiracy software lest they “end up
of their copyright infringement policies and pos- caught in an expensive 'arms race' between tech-
sible consequences, they were not in favor of nology companies and enter prising file swap-
requiring institutions to “provide alternative pers” (Read, 2007, p. A34). Sannier’s point is
music and movie services and implement tech- particularly relevant given that higher education
nological measures to deter f ile sharing” (ACE, information technology offices are already
2008, para. 3). The vagueness of this provision engaged in numerous other technological arms
is problematic for two reasons. It does not speci- races, combating ever-increasing volumes of
fy what “provide” means; thus, it is unclear if an junk email, viruses, spyware, malware, and so
institution could simply make the free iTunes forth. Opening up a new front in this ar ms race
application available to students, or if institu- would likely prove costly on a variety of levels.
tions are required to purchase a le gal streaming
service license such as Yahoo! Music for their During that same hearing, Gregory A.
campus. In addition, requiring institutions to Jackson, vice president and chief infor mation
implement technological measures to block file officer at the University of Chicago, and Cher yl
sharing has not been cost effective or efficient. A. Elzy, dean of libraries at Illinois State
University, testified that colleges and universi-
In the letter written to the tw o ranking sena- ties “would benefit at least as much from educa-
tors, ACE President David Ward assured the tional programs and improved legal-download-
senators that “colleges and universities take ille- ing services as they would from technological
gal file sharing very seriously. Institutions deal tools” (Read, p. A34). In response to these com-
with illegal file sharing through the education of ments, Florida Representative Tom Feeney told
their students, network management, and institu- the college administrators that he was “disap-
tional policy enforcement” (ACE, 2008, para. 4). pointed” that they had “minimized the potential
He challenged the 2005 MPAA statistics cited in of technological solutions” to piracy (Read,
the legislation that 44 percent of its domestic 2007, p. A34). He further warned that colleges
losses were due to illegal P2P f ile sharing by and universities take “aggressive steps” to
college students. According to Ward, the MPAA address illegal file sharing and insisted he would
itself recently revealed after reexamination that push institutions to use some type of antipirac y
the actual loss due to colle ge students was only technology, “whether you like it or not” (Read,
15 percent and since only 20 percent of college 2007, p. A34).
students live on college campuses, only 3 per-
cent of MPAA losses can be attrib uted to college Delicate Balance of Student Rights
students using campus networks. Given this and Institutional Liabilities
small percentage and cur rent technologies, it Although there are legitimate and legal
would be burdensome and ineffective to require means for P2P f ile sharing, the vast majority of
campuses to purchase software that not only press on this topic has been about the ille gal file
restricts network activity as well as students sharing, specifically by college students. Within
legally accessing digital media (Ward in ACE, the discussion on the legal rights of students to
2008). access digital media, there are essentially three
main considerations: the definitions of down-
While institutions of higher education loading versus piracy, balancing content restric-
should not be complicit in the ille gal download- tion with bandwidth issues, and the notion of
ing of f iles by their students, some academics creativity and innovation.
and lawyers question if it is the role of higher
education to be the enforcer of these la ws and if, Often when the topic of downloading digital
at public institutions, taxpayer dollars should be media is discussed, the first thought is that this
used to further support this seemingly outdated is being done illegally. This illegal practice is
commonly called piracy since it is viewed asessentially stealing content rather than paying a sible. These informational conduits are liable to
50 price to use or own it. However, downloading be overused, and other strategies, such as the rel-
digital media has many legitimate, noninfringing atively slower but steady trickle of P2P, are
The Journal of Technology Studies
uses both inside and outside of higher education. required.” He also stresses that the relationship
P2P file sharing is typical in small or ganizations between P2P and FOSS is not one purel y associ-
where there is not a centralized ser ver so that ated with distribution of a f inal product. Rather,
any user can use and share an y file with another P2P also provides much of the critical connec-
user within their network (“Tech Encyclopedia,” tivity needed to facilitate collaboration on such
2008). projects:
Other examples might include students in a [P2P] depends on a floating and often in vis-
band wanting to share their own music with ible public whose nearly automatic sharing of
known friends or unknown fans; students work- material bypasses and renders nearly irrelevant
ing on a group project in class sharing f iles with the older model of static ser vers. And for free
each other; students or f aculty who have created software, whose license not just allows but
original works – even commercial works – but encourages the free distribution of the commod-
want to allow “mash-ups” (creative reinterpreta- ity and code, P2P not only is the natural vehicle
tions) of it; or students w ho have filmed their but also grows the community upon which the
own movies and have no other means for distri- software is built. (personal communication,
bution. A recent example of noninfringing use September 3, 2008)
of P2P includes fan-produced films, such as the
user-created “new” episodes of the original Star Hilton (2006) encourages colleges and uni-
Trek series, called “Star Trek: New Voyages” versities to participate in the open source move-
(recently renamed Star Trek: Phase II). Each of ment in support of the notion of free e xchange
the current episodes available, all done via vol- of ideas. Open source software (such as Linux
unteers and strictly not-for-profit, rely on P2P as and OpenOffice.org) is primarily available
one of several distribution mechanisms since through P2P f ilesharing since this shares the
“bandwidth and storage are at a premium” and bandwidth overload and thus does not overbur-
P2P makes more efficient use of both (“Star den any one network.
Trek: Phase II FAQ,” 2008). Downloading and
accessing these episodes represents a v ery clear, Creative Commons is another example of
noninfringing use of P2P that could be used b y efforts to support copyright while supporting the
students and faculty in assignments related to public access to information. On the Creative
media studies, theater, film, popular culture, and Commons website, the claim is made that ends
others. are cooperative and community minded, but the
means are voluntary and libertarian (Creative
Another example would include computer Commons, n.d.), because it allows authors to
enthusiasts wanting to share the newest Linux choose a license that allows both commercial as
distribution or similar free/open source software well as non-prof it use of work. Similar to open
(FOSS). Open source software, while in many source software, many of the works licensed
cases has sponsorship from large technology through Creative Commons are accessible
companies such as IBM and Google, is still ulti- through P2P networks. According to Morrill
mately community driven with ISO disk images (2006), Creative Commons and P2P are ideally
often being distributed by way of BitTorrent and suited, and the piracy-related stigma surrounding
similar P2P methods. Having this option avail- P2P neglects the “hundreds of creative commons
able is not merely helpful; it is critical. works that are in the [P2P] distrib ution channel”
(para. 7). Examples of this would include sites
Dr. Louis Suarez-Potts serves as community like LegalTorrents, an “online digital media
manager for the OpenOffice.org project, an community” with the following goals:
office productivity suite compatible with
Microsoft Office and one of the lar gest open We discover and distribute high quality
source projects in the world. Potts (2008) argues open-license (Creative Commons) digital media
that P2P distribution is essential for this and and art, and provide support to Content
numerous other open source efforts, “but for Creators. We host creative content in its entirety,
many, downloading [free and open source soft- ensure fast, reliable downloads, and enable users
ware] from f ixed servers via fat pipes is impos- to directly sponsor Content Creators and theirwork. We distribute content with the full per mis- with which these illegal acts have been pursued,
sion of the rights holders and use the peer -2- a direct and widely communicated institutional 51
peer file-sharing technology called BitTorrent. policy must be available to students, faculty, and
The Journal of Technology Studies
(2003, para. 1) staff. In March 2008, Temple University was yet
another institution to inform all faculty, staff,
According to Hilton (2006), Creative and students of such a polic y through a campus
Commons “provides a mechanism for shar pen- email entitled, “Policy Reminder on Copyright
ing the blunt instrument of copyright” (p. 70). Violations.” This memo focused on the le gal
P2P has become an impor tant distribution ramifications of illegal downloading and offered
means for this mechanism. individuals assistance in removing illegal files
from their computers (Temple University, 2008).
Hilton’s (2006) assertion is admittedly more Realistically speaking, this will be an ongoing
complex as it deals with the notion of creati vity challenge for administrators on campuses to
and dissemination of knowledge in society as ensure all users are infor med of this policy,
well as the academy. This author states that especially given the pervasive nature of access-
“most people think that the primar y purpose of ing digital f iles via the internet and the ease
copyright law is to protect an author's intellectu- with which students can access this medium.
al property or idea. In f act, the primary purpose
of copyright law is to promote lear ning through In addition, institutions must hold inclusive
the spread of ideas” (p. 66). Though not the typ- discussions of not only the legal implications of
ical response if one were asked about copyright, illegal file sharing, but also the ethical consider -
this definition is very much consistent with the ations of how to respond to requests for students
academic values on which our colleges and uni- named in lawsuits for illegal file sharing. These
versities were founded. As such it seems that discussions also should include how to educate
higher education should strive all the more to members of the campus community about f air
balance the individual incentive to create new use as part of a greater conversation on intellec-
ideas with the sharing of and collecti ve access to tual property, and legal ways to download and
information. Without this balance, many future use digital f iles. Given students' relative imma-
innovations could be stifled or at the v ery least turity and the potential consequences, an educa-
delayed. According to Hall (2006), “P2P shaped tional focus on ethical behavior along with the
the Internet as we know it today. If Internet serv- legal details of f ile sharing seems quite appro-
ice providers were initially aware of the possibil- priate.
ity of being liable for online copyright infringe-
ment, the Internet might not be the wealth of Through its Digital Citizen project at
ideas it is today” (p. 392). Illinois State University (ISU), a partnership of
individuals and units from across their campus
Even though proposed legislation in are involved in a research project to lear n more
Congress as well as the threat of lawsuits require about their students' use of P2P f ile sharing soft-
institutions do more than merely hope students ware. Through this research project, the authors
use P2P networks appropriately and legally, any attempted to turn anecdote to facts through
institution would rather deal with such issues research, and assert that illegal downloading is a
proactively, educating students and hopefully symptom not the problem that is not incubated
preventing them from committing illegal acts. in higher education but inherited from K-12
As outlined earlier, judicial deference toward (Illinois State University, 2007). Though in the
higher education has not been e xtended on this early stages of their study, ISU researchers
particular subject, making it critical for colle ges found that most students are somewhat aware of
and universities to take this issue seriously. the legalities downloading digital media. Many
students claim they would stop doing so illegally
The first step for institutions may very well if caught, but would only stop for a few days.
be to craft and enforce “acceptab le use” policies. Although ISU chooses not to use pack et-shaping
Kaplin and Lee (2007) asser ted that the policy software such as Packeteer to limit bandwidth to
should be made available to the campus commu - certain types of network activity, many campus-
nity online and that the polic y should be posted es do just that in an attempt to cur tail illegal P2P
in computer labs and copy centers in plain view file sharing. One of the other hallmarks of this
of users. With the relatively recent and evolving project is that ISU is par tnering with RIAA,
nature of the legislation, as well as the fervorMPAA, as well as corporations that have a vest- P2P file sharing uses and to pledge the y will not
52 ed interest in reducing illegal file sharing by illegally download media f iles (Emerson, 2008).
college students (Illinois State University, n.d.). The university's vice president for infor mation
The Journal of Technology Studies
technology, Michael Pierce, said that instead of
According to McCormick (2006), many col- blocking all traffic to the P2P sites, USF w anted
leges and universities are creating educational to make students aware using P2P software,
campaigns to inform their campus communities because it can be used for le gitimate purposes.
of the potential consequences of ille gal P2P f ile If students violate this ag reement and if they are
sharing as well offering “free music download named in an RIAA letter, they will be processed
services to students as a le gitimate, legal alter- through the campus discipline process in w hich
native to illegal P2P f ile-sharing” (p. 724). As their sanction may be as serious as a suspension,
mentioned, the question of what type of free as well as any legal penalties from their RIAA
downloading service and who should pay is still case. In addition, USF provides new students
in question. It is difficult to def ine “offering,” at with information about this campus policy dur-
least in terms of whether or not offering access ing orientation programs, in the residence halls,
to legal music services will be enough to placate as well as through direct communications
the recording industry. Would it be enough if (Emerson, 2008).
institutions simply had iTunes installed on all
university-owned systems, both Mac OS X- This new system costs USF about $75,000
based and Windows? On one hand, the institu- per year, which some argue should instead be
tions in question would provide easy access to spent for educational pur poses. Other academics
the iTunes Store, which offers a wide variety of add that colleges and universities should not be
commercial audio and video content and numer- coerced into spending taxpayer dollars in an
ous free songs, free episodes of tele vision attempt to stave off future law suits. Steve
shows, and thousands of free audio and video Worona, Director of Policy and Networking
podcasts. This strategy would require no addi- Programs for Educause, agrees with both argu-
tional costs, beyond the time needed to update ments, saying that the time and mone y spent on
the disk images of these systems. But, w ould blocking illegal downloads, which could be
such an undertaking be enough, or would insti- “tens of millions of dollars” nationwide, should
tutions be required to actually purchase massive be spent on educational needs as deter mined by
subscription plans for their students to ser vices individual institutions (Worona, in Emerson,
like the Microsoft Zune Marketplace, or the 2008).
MTV URGE store? If so, wouldn’t such an
action effectively amount to a massive subsi- Many students and professors applaud these
dization of the business model of a private educational approaches as a means to sta y ahead
industry by (in many cases) public institutions? of the legislation and, they hope, lessen institu-
Again, it goes back to how seemingly innocuous tional liability. Though these approaches still
terms like access and offer are defined, and by allow the legitimate and benef icial uses of P2P
whom. From a purely pragmatic perspective, software for faculty and students alike, some
Kaplin and Lee (2007) indicated that these members of university communities are con-
efforts might be a good investment because, in cerned that the overly restrictive measures
their estimation, more colleges and universities regarding their campus networks could under-
have not been sued over the years because of mine the very foundation of academe.
their good-faith efforts to inform campus com- McCormick (2006) states, “Unfortunately, the
munities and respond to allegations of f ile-shar- collective effort of these measures, along with
ing infringement. current statutory law, may have the unintended
consequence of chilling the academic discourse
As one example, administrators at the vital to higher education's central goal and the
University of South Florida (USF) recentl y technological innovation on which private indus-
informed users of a change to their campus net- try has come to rely” (p. 725).
work. Instead of completely blocking all P2P
software from this campus network, or resorting Slippery Slope
to Draconian packet shaping measures, when a Colleges and universities will thrive to the
user attempts to use the university network to extent that they foster innovation and the free
access P2P software, he/she is redirected to a exchange of ideas. The ability to do so is threat-
web page, which reviews appropriate and legal ened by the emerging view of ideas as pureproperty and by a shift in focus from ser ving the infringing or noninfringing use of P2P softw are.
public good to serving the bottom line. If we Rather than taking an either/or position as man y 53
want to preserve innovation, we have to begin extremists have done, it is time for educators to
The Journal of Technology Studies
asking how we can share, rather than how we do what we do best: respond to this societal
can protect. (Hilton, 2005, p. 73) issue by being true to our beliefs, which
includes engaging interested parties in discus-
It is clear that institutions cannot per mit or sions on the protection of intellectual proper ty,
allow students to use campus networks to com- how technology has changed, and the way peo-
mit illegal acts of downloading digital media. ple view it, while maintaining a commitment to
The potential liability demonstrated in recent educate students along the way. Too much is at
legislation and legal cases has made this painful- stake not to carefully consider the consequences
ly clear. However, institutions also have obliga- of these threats. Har rison (2006) states: if higher
tions to defend core values and be informed par- education maintains a role to “educate f irst and
ticipants in this ever-important societal conver- discipline second, we can encourage and rein -
sation. Harrison (2006) suggests the issues force habitual respect for ownership and fair
inherent in this conversation are timeless, and use” (p. 708).
focus on “questions of ownership, intrusion into
private lives, and ethical actions in the f ace of Lisa McHugh Cesarini is the Assistant Vice
choices” (p. 708). McCormick (2006) echoes Provost for Enrollment Management at Bowling
these thoughts: “Higher education must react to Green State University.
the changes in technology and the changes in
laws in very technical ways, but our starting Dr. Paul Cesarini is an Associate Professor and
place should be grounded in basic fundamental Chair of the Department of Visual
questions, and with a goal to foster our academ- Communication and Technology Education at
ic purposes” (p. 682). It is critical for adminis - Bowling Green State University, and is a
trators and faculty in higher education to consid-
Member-at-large of Epsilon Pi Tau.
er the ethical perspective in spite, and perhaps in
the midst, of pressing legal threats.
Since 2000 when Metallica included three
universities in its lawsuit against Napster, higher
education has been reacting to and r unning from
potential legal threats, often regardless of the
References
American Council on Education (ACE). (March 11, 2008). ACE submits comments on f ile-sharing
provisions in HEA reauthorization legislation. Retrieved March 13, 2008, from
http://www.acenet.edu/AM/Template.cfm?Section=HENA&TEMPLATE=/CM/ContentDisplay.cfm
&CONTENTID=26000
Bono, M. (1998, October 7). Cong ressional testimony on the Sonny Bono Copyright Term Extension
Act. Retrieved February 22, 2009, from http://thomas.loc.gov/cgi-
bin/query/F?r105:1:./temp/~r105cSf1W8:e46923:
Carlson, S. (2000, April 28). Metallica sues universities and Napster, charging that students engage in
music piracy. Chronicle of Higher Education, p. A50.
Creative Commons. (n.d.) Retrieved on March 30, 2008, from http://creativecommons.org/
Cornell University. (2007, April 11). Letter to all students re garding Recording Industry Association
of America settlement letters and preser vation notices. Retrieved on March 29, 2008, from
http://www.cit.cornell.edu/policy/memos/riaa.html
Digital Millennium Copyright Act Report Executive Summary (DMCA). (n.d.) Retrieved February 28,
2008, from www.copyright.gov/reports/studies/dmca/dmca_executive.html
Emerson, A. (2008, March 20). USF k eeps watch on students' music. Tampa Tribune. Retrieved
March 28, 2008, from http://www2.tbo.com/content/2008/mar/20/na-usf-keeps-watch-on-students-
music/Hall, H. (2006). The day the music died: The Supreme Court's reversal of MGM Studios, Inc. v.
54 Grokster and its impact on secondar y liability for copyright infringement. Journal of Law &
Education, 35(3), 387-393.
The Journal of Technology Studies
Harrison, D. (2006). The P2P f ile sharing war after Grokster: it feels lik e Belgium over here. Journal
of College & University Law, 32(3), 681-708.
Heinlein, R. (1980). Life line. In R. Heinlein (Ed.), Expanded universe. (pp. 4-21). New York: Ace
Books. (Original work published 1939).
Hilton, J. (2005). In praise of sharing. Educause Review, 40(3), 72-73. Retrieved March 30, 2008,
from http://connect.educause.edu/Library/EDUCAUSE+Review/InPraiseofSharing/40547
Hilton, J. (2006). The future for higher education: Sunrise or perfect stor m? Educause Review, 41(2),
58–71.
Illinois State University (n.d.) Digital citizen project. Retrie ved February 1, 2008, from
http://www.digitalcitizen.ilstu.edu/
Indiana University statement (2000, April 20). IU installs f ilters preventing use of MP3 music site.
Retrieved March 31, 2008, from http://newsinfo.iu.edu/OCM/releases/napster02.html
Jefferson, T. to McPherson, I. (1813, August 13). In Kurland, P. and Lerner, R. (eds.) The Founders'
Constitution. Retrieved March 13, 2008, from http://press-pubs.uchicago.edu/founders/
print_documents/a1_8_8s12.html
Kaplin, W. A., & Lee, B. A. (2007). The law of higher education (4th ed., Student version).
San Francisco: Jossey-Bass.
LegalTorrents. About Legal Torrents. Retrieved August 11, 2008, from
http://beta.legaltorrents.com/about
McCormick, B. (2006). The times they are a-changin': How current provisions of the Digital
Millennium Copyright Act, recent developments in indirect copyright law and the growing
popularity of student peer-to-peer file-sharing could "chill" academic freedom. Journal of College
& University Law, 32, 709-725.
Morrill, D. (2006, October 6). Bit Torrent and Creative Commons. ITtoolbox: Security Community.
Retrieved July 18, 2008, from http://it.toolbox.com/blogs/managing-infosec/bit-torrent-and-creative-
commons-12265
Read, B. (2007, June 15). Lawmakers encourage colleges to use technology to curtail campus piracy.
Chronicle of Higher Education, p. A34.
Recording Industry Association of America (RIAA) (2003). Online Piracy and Electronic Theft
Webpage. Retrieved on April 4, 2008, from ht tp://web.archive.org/web/20030801082948/
www.riaa.com/issues/piracy/default.asp
SearchNetworking. Traffic Shaping. Retrieved on June 25, 2008, from
http://searchnetworking.techtarget.com/sDefinition/0,,sid7_gci1310157,00.html
Star Trek: Phase II. Frequently Asked Questions. Retrieved on August 1, 2008, from
http://www.startreknewvoyages.com/faq.html
Temple University Campus Services memo. (March 26, 2008). Policy reminder on copyright
violations. Retrieved March 29, 2008, from http://www.temple.edu/cs/VPannouncements/
filesharingpolicy.html
Tech Encyclopedia. Peer-to-peer network. Retrieved on March 30, 2008, from
http://www.techweb.com/encyclopedia/defineterm.jhtml?term=peer%2Dto%2Dpeernetwork
Ulrich, L. (2000). Music on the inter net: Is there an upside to do wnloading? Testimony before the
Unites States Senate Judiciary Committee. Retrieved on March 28, 2008, from http://judiciary.sen-
ate.gov/testimony.cfm?id=195&wit_id=252
United States Constitution. art. I, § 8, cl. 8. Retrie ved March 18, 2008, from
http://www.law.cornell.edu/constitution/constitution.articlei.html#section8You can also read
