Wednesday, August 01, 2007

P2P in colleges and the promiscuous relations between the US Congress and the entertainment industry

Some places have been commenting about US Senate Majority Leader Harry M. Reid dropping his proposed amendment to the Higher Education Act, called “Campus-based Digital Theft Prevention”, but while the news could be a good one, the fact that the amendment was ever proposed or drafted raises every form of concern. The amendment, incredibly bizarre from the legal and ethical point of view, was designed to give to the RIAA and the MPA police powers by asking them to draft annuals lists of the 25 colleges receiving the most notices of copyright infringement and then subject those colleges in the list (which again, was going to be made by the RIAA and MPA) to the obligation of using technological tools or losing federal student aid! It sounds impossible and incredible but yes, the leader of the US Senate majority proposed to put on the entertainment industry’s hand the decision of which college can and cannot receive federal student aid (do we need to check whether Senator Raid’s house is also been refurbished?).
The now defunct proposal, which seems that will be picked by the House of Representatives, does not make any sense and it is based on several mistakes of fact and law, that at that level cannot be ignored, so we have the right to wonder whether the representatives of Alaska are the only ones in need of FBI investigation (it seems that no). First, it takes as res sancta the simply untrue statements given by the entertainment industry in the Congress, which contradict the same industry’s official publications. According to Kenneth Green, director of the Campus Computing Project, in a comment to an article of the Inside Higher Ed.

[t]he comments by Mitch Bainwol, chairman and CEO of the Recording Industry Association of America, misrepresent the RIAA’s own data on who is engaged in illegal downloading and which (broadband) networks are being used for illegal downloading. Some examples: — only 4 percent (329) of the more than 8400 “John Doe” lawsuits filed by the RIAA in 2004-2005 involved college students; the rest were “civilians” using consumer broadband services. — a RIAA news release dated 28 Feb 07 states that “college students are the most avid music fans.” Yet data from the RIAA’s 2005 Consumer Profile reveal that consumers ages 18-24 (including but not limited to college students) account for approximately one-sixth (15-17 pct.) of the music buying population in the United States; in contrast, consumers ages 25 and older purchase two-thirds (66.9 pct.) of all recorded music.— “half” the nation’s more than 16 million college students ages 16-67 are NOT engaged in illegal downloading as claimed by Mr. Bainwol and others from the RIAA.

Other important problem of fact is that, particularly in colleges, is plainly not true that all the P2P traffic is devoted to infringing activities. Furthermore, most of the technologies that are now making the US competitive (this whole thing started from some of of committee for 21st Century Competitiveness or something like that) have been devised and tried in campuses and, due to the size of some of the files, P2P technology is what enables students and researchers to share them. And what happens with people perfectly-legally sharing music that is licensed under the Creative Commons? Is this another form that the RIAA and the MPA have found to stop people using alternative forms of licensing not needing them?
From the legal point of view, it is difficult to know where to start from. First, we have the issue of giving police powers and, indirectly, power to decide over the allocation of federal funds to trade groups that should be subject to investigation under antitrust legislation, seems a “bit” illegal, even within the current American situation where the rule of law is subject to so many exceptions. Then, to force third parties to take positive actions to protect the profits of copyright owners seems a step to far in the American Congress efforts to ensure that the entertainment industry keeps having profits far beyond what the market is ready to allow them. There are also concerns about whether such a measure would be compatible with the US Constitution 14th Amendment, because it puts an obligation into colleges that does not put into other networks and Internet Service providers and with the 4th Amendment because it will also imply that colleges will have to search all traffic going through them even when the researcher or student is connecting to the network from a private computer outside campus using a private Internet Service provider.
Other very important issue it that by monitoring and blocking certain type of traffic, colleges are likely to loose their status as transitory Internet Service Providers, which could make them liable for any type or infringement and also responsible for criminal activities taking place over their networks, and therefore, exclude them from the safe harbour provision of the Digital Millenniums Copyright Act. Then, many crimes are committed using cars…should the car vendors (providers) be liable unless they fit in every car a transponder that allow for localization and/or they also create some sort of technology to stop cars from working if a crime is committed with it? And the companies making the roads? And the gun industry? And…? There are so many examples to be given where the principle is that the one supplying the medium or the technology is not liable for the use of them that this sort of proposals are simple repulsive, because they come from people that won the last election promising to change the way things were done in DC…

(In order to not make a book out of this simple blog, I just left outside the issues relating of the inefficacy of the filtering technology and the even greater issues of academic freedom, freedom of speech and privacy)

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