How Forcefully Should Universities Enforce Copyright Law on Audio Files?
Carnegie Mellon's search for MP3's pleases recording industry, but irks some students
By KELLY McCOLLUM
Seventy-one students at Carnegie Mellon University got a lesson in copyright and computer ethics last month, after the university discovered that they had been distributing illegally copied MP3 audio files on the campus network. For college and university administrators, however, the lessons are more complicated.
Among students, MP3's are one of the year's hottest on-line trends, allowing friends to trade songs digitally and music aficionados to search the Internet for rare tracks by their favorite performers. But for recording artists, the format is a copyright-infringement nightmare: Users can easily copy entire compact disks and serve them up on the Net for anyone to download free. And the Recording Industry Association of America has been aggressively pursuing copyright violations on campuses.
In the middle are university administrators. Few are eager to search students' computers, but even fewer want to be sued because students are using their campus networks in ways that violate copyright laws. And even though those laws make it clear that responsible network administrators can't be held accountable for the behavior of every user, deans and campus-computing officials want to reduce illegal activity -- and teach students ethics.
Network administrators at Carnegie Mellon say that is why they decided last month to check the public folders of 250 student computers connected to the university's network. Dozens of the folders contained illegally copied MP3's, which were accessible to about 11,000 users of the university's computer network, although not necessarily to anyone outside the university.
Students who were caught making the files available to others on the campus network lost their in-room Internet connections for the remainder of the semester, meaning they must go to one of the university's computer labs when they need network access. Students who attended a 90-minute class on copyright got their sentences reduced to one month.
Carnegie Mellon's investigation, which came without warning to users, prompted some students to complain about invasion of privacy and unfair punishment. But according to Paul G. Fowler, the university's associate dean of student affairs, the move was meant to gauge just how significant a copyright-infringement problem the campus network faced. "It wasn't a crackdown. It wasn't some big caper," says Mr. Fowler. "All we did was go in to take a look at the culture of our intranet."
Mr. Fowler says the search was prompted by a handful of complaints of copyright violations the university had received from both on and off the campus. He adds that administrators wanted to know whether the university needed to beef up its efforts at educating students about copyrights. "We wanted to know if that's a good use of our resources," he says. "We now know that it would be."
"We were expecting to find 5 or 10 machines. We found 71. Then we thought, 'Jeez -- this is horrible.' I don't want all these students to lose network access for the whole semester." Students were allowed to appeal their suspensions to Mr. Fowler.
Some of those students were sharing legal MP3's, like live performances by the Dave Matthews Band, which expressly authorizes fans to record its shows and share or trade the recordings. "They said, 'Dave Matthews said we could do it,'" says Mr. Fowler. In two or three other cases, students who would have been put to undue hardship by having their Internet access shut down, such as a student bedridden with mononucleosis and strep throat, were let off the hook.
Carnegie Mellon's action was unusual -- unless a copyright holder complains, most universities don't go looking for trouble on their networks, even though it most likely exists in the form of illegally copied MP3's and software. "We do not go trolling for it," says Richard Fagen, director of information-technology services at the California Institute of Technology. "You never want to do that."
"We certainly don't condone anything that's illegal or unethical, but you can only go so far," says Mr. Fagen. "We're not the cops, going around searching people's computers without any probable cause."
"We have a policy that makes it very clear that you can't violate the law using our networks," says Marjorie Hodges Shaw, director of the Computer Policy and Law Program at Cornell University. "But we do not monitor for illegal usage or for policy violations," she says.
Carnegie Mellon usually maintains a hands-off approach, too, says Mr. Fowler. "But the fact is that we've created this culture where students have told us that the intranet was free range. If that is in fact the culture, it would be hard for us to say, 'We didn't know students were sharing files left and right.' We could say that, but we'd be lying," he says.
What university officials know and when they know it matters because of the Digital Millennium Copyright Act, an Internet-age update to American copyright law that was passed last year. Under the act, "on-line service providers" -- such as universities that offer Internet connections to students, or commercial providers like America Online -- are relieved of some responsibility for copyright infringement by their users.
According to Arnold P. Lutzker, a lawyer who works with the American Library Association, the protection offered by the act means "you don't have to monitor, but you are required -- if you have received notice -- to act."
To qualify for the limited liability, explains Mr. Lutzker, an institution must first register itself as an on-line service provider, or O.S.P. A U.S. Copyright Office Web site (http://lcweb.loc.gov/copyright/onlinesp/) provides instructions for registering. Providers must also establish internal policies for dealing with copyright infringers.
The digital-millennium act, in fact, specifies how a service provider must respond when a copyright holder complains about a suspected infringement. The provider must shut off access to the infringing material and notify the user who posted it. The user can then appeal the shutoff and take up the matter with the copyright holder. As long as a university complies with those requirements, says Mr. Lutzker, it is probably free from liability for any given infringement. A detailed explanation of the provision is available on the A.L.A.'s Web site (http://www.ala.org/washoff/osp.html).
The law also includes a provision that limits an institution's responsibility for material posted by professors and graduate-student employees. "Typically an employer is liable for the actions of its employees, and this is a tweak on that," says Mr. Lutzker.
While the act's provisions can protect universities from getting sued for monetary damages if a student maintains an illegal MP3 archive, Mr. Lutzker warns that universities can still be liable if they are shown to be lax in discouraging copyright infringements. If an institution is the focus of repeated complaints, or if it creates an environment that is conducive to copyright infringement, a copyright holder might be able to sue to prevent future violations, he says.
Universities that receive reports of MP3-related copyright violations most often receive them from one entity -- the Recording Industry Association of America.
The association, which represents record companies, works particularly hard to track down illegal MP3's. The association has a staff of researchers who comb the Internet for sites that violate copyrights of its members. It has focused closely on academe.
Two years ago, when the association turned its attention toward colleges, "about 70 per cent of the infringing sites we found were on university networks," says Frank Creighton, a senior vice-president of the association who directs its anti-piracy efforts. At that time, Mr. Creighton says, the association began a campaign to educate students and universities about music copyrights. A handful of institutions, including Carnegie Mellon, helped design the campaign (http://www.soundbyting.com/). "Our tack has been to educate first, before we enforce," says Mr. Creighton.
"Now we're only finding about 30 per cent of the infringing sites on universities," he says. "We think that's largely due to not just the education campaign itself and students' actually getting the message, but also to the universities' understanding how big the problem is and putting in place their own procedures" to educate students and punish violators.
At the same time, the association has continued its practice of sending letters to universities whenever R.I.A.A. employees spot on-campus servers offering copyrighted music. Those letters -- which must specify both the material in question and the server on which it resides -- prompt most of the disciplinary actions taken by colleges and universities.
Mr. Fagen says Caltech, which has about 900 undergraduates, has received only three such complaints in recent years. Cornell has gotten 12 in the past year, says Ms. Hodges Shaw. And Carnegie Mellon has received about two dozen in total, says Mr. Fowler, adding: "That's not a huge number, but it's irritating to get them."
So far, every university the R.I.A.A. has contacted has responded by shutting down the infringing sites, says the association's Mr. Creighton. Even after an offending site is closed, the association still has the right to sue its creator for damages, but Mr. Creighton says that's rare.
"We think it's about education, so we're willing to give individuals or students that first pass. But if we do catch you doing it again, we have no alternative but to take the stance that you're thumbing your nose at us and you don't take us seriously, and there are potential civil and criminal remedies that we will invoke if we need to."
A university that didn't cooperate with a copyright holder's request would lose its limited liability under the copyright law, but that hasn't happened yet, says Mr. Creighton. "Can I say that somewhere down the road we're going to find a university that won't heed our warning? It's a possibility," he says. "And we hope we'd be able to negotiate that out of court first, before we had to go the route of actual litigation."
He acknowledges that universities' protected status has hindered the association's enforcement efforts. It has "led a lot of I.S.P.'s or universities not to scan their own networks for this infringing activity," he says. "It's actually worked against us in that sense."
"I absolutely applaud what Carnegie Mellon did and, in fact, we always ask universities for their help in seeking out those infringements and enforcing."
University officials, however, are quick to say they're not undertaking anti-infringement programs just to please the R.I.A.A.
"I'm no fan of the recording industry," says Carnegie Mellon's Mr. Fowler, "but our students need to understand that they're probably going to be out there creating software someday that's going to make them a million dollars. If that software winds up in some shared community, their livelihood is jeopardized because people are sharing copyrighted material.
"That's going to be harmful to them," he continues. "So why shouldn't we afford the same opportunities to make a living to other members of our broader community as we would expect our students to have when they go on to make their millions?"
Peter Schmidt contributed to this article.
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Section: Information Technology
Page: A59
