Should Colleges Serve as the RIAA's Anti-Piracy Enforcers?

The Recording Industry Association of America is now infamous for its aggressive enclosures of music. It has expanded the scope of its copyright monopolies over music while using its market power against singers and songwriters. It uses techno-locks to eliminate the public’s rights in fair-use copying and sharing of digital music. In recent years, it has used lawsuits and financial penalties to intimidate thousands of students and make them conspicuous public examples.

Essayist Lewis Hyde recently had a revealing exchange with RIAA President Cary H. Sherman in the Chronicle of Higher Education. It concerned the question of whether colleges and universities should allow the RIAA to annex their moral authority in the fight against illegal downloading. Should higher education endorse the RIAA’s notions of what constitutes “piracy” and propagate those ideas to students?

I thought readers of OntheCommons.org might appreciate Hyde’s challenge to Sherman, excerpted below. Hyde is a professor at Kenyon College; author of the seminal 1979 book, The Gift; and a good friend of OntheCommons.org and the Tomales Bay Institute. (His previous guest-blogging can be found here.)

Hyde writes:

The Chronicle of Higher Education organized a discussion around the following:

Last fall the Recording Industry Association of America sent letters to about 700 colleges, announcing that it would soon let students accused of music piracy settle their claims out of court before it officially filed suit. In February the trade group made good on its promise: It sent batches of “pre-litigation notices” to 13 universities and asked those institutions to pass the messages along to students identified only by their Internet-protocol numbers. The notices direct recipients to a Web site and a telephone hotline to which they can pay lump sums to record companies.

Now that the trade group is making a monthly practice of sending the pre-litigation letters, many college administrators are wondering if they should forward the messages to their students, as recording-industry officials have asked. Cary H. Sherman, the association’s president, will answer your questions about the recording industry’s new antipiracy endeavor…

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So Hyde sent in this question:

The recording industry regularly asks colleges to police their students in regard to infringement. Why is it the task of colleges to do this police work, rather than the police?

Sharing files over the internet is not illegal per se; that depends on what’s in the file and on what it is being used for. An accusation of music piracy is not a proof of music piracy: questions of evidence, and of fair use, and of educational exceptions to infringement come into play.

If colleges “pass along messages” that direct students to “pay lump sums to record companies,” colleges become an arm of the recording industry, bypassing their educational role (teaching about fair use, for example) and bypassing due process, if in fact there is a criminal charge to be made.

For these reasons I believe that colleges should decline this RIAA request. How would Mr. Sherman respond to the background assumption here, that the industry, the colleges, and law enforcement are distinct institutions, and that there is good reason to keep their separate roles clear?

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Here is how Cary Sherman replied:

Lots of questions in here, but let me try to respond generally. First, we do not ask colleges to police their students. But we do expect colleges to be proactive in educating their students about illegal downloading, about their network “acceptable use” policies, in enforcing their policies and the law when violations are brought to their attention, and in offering legitimate alternatives so students can get music legally rather than illegally. We also believe that colleges should consider technical measures to impede illegal use of campus networks, by filtering out infringing transmissions. This would benefit colleges by preserving their bandwidth for legitimate academic purposes (especially important when estimates of illegal use go as high as 90% of available bandwidth), and it would send the right message to students that illegal behavior is not acceptable. There are many schools that use technical measures to ferret out plagiarism — why should they use technical measures to at least inhibit illegal downloading?

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Here are Hyde’s thoughts on Sherman’s reply:

To comment briefly on Mr. Sherman’s response, the first thing to note is that his entire presentation assumes that all created work is intellectual property and has market value. That assumption may be appropriate to the recording industry but it isn’t appropriate to the university. As for the particulars here, Sherman says that the RIAA doesn’t ask colleges to police their students, but what follows makes it clear that they do.

My question presumed that we cannot know if any particular downloading is legal or not; to know that would require a look at the evidence and, if contested, due process of law. Sherman, on the other hand, assumes the guilt of the targeted students (the word “illegal” appears six times in the first paragraph) and asks the colleges to follow suit. My question also assumed that the distinction between the university and the recording industry is worth preserving. This response is thus a bit disingenuous: “…we are not asking them to tell their students what to do — just to give us an opportunity to convey our message….”

The fact is that a message “conveyed” by the college becomes the college’s message as well, and brings to bear the considerable authority that colleges have over their students’ lives. If these are “pre-litigation letters” that amount to both “DMCA notices and ‘preservation of evidence’ notices,” the act of conveying them implies a convergence of the industry’s norms and the college’s norms. In directly addressing my point about “distinct institutions,” Sherman allows the distinction but then quickly erases it, claiming that we all “share a common interest in teaching that music, movies, academic writings and all other forms of intellectual property have value and that it’s both illegal and immoral to take it without paying for it.”

No we don’t. Not all music, movies, and academic writings are intellectual property. Not all creative work finds its value in the marketplace. And often it is both legal and morally right to share it without any payment being involved. The norms of the academy are not the norms of the music business, and the academy should resist the call to confuse them.

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The entire Chronicle discussion is on the web at http://chronicle.com/live/2007/04/sherman/.

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