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File Sharing Back in House Legislation

Illegal file sharing at colleges and universities is back on the agenda in Congress. In a bill introduced in the United States House of Representatives late last week by Reps. George Miller (D-CA, chairman of the Committee on Education and Labor) and Rubén Hinojosa (D-TX), language was introduced requiring institutions to deal with file sharing and the illegal distribution of copyrighted material by students. However, reports on the legislation (and responses to the reports) may be overstating the significance of the wording.

Back in July, members of the U.S. Senate had attempted to put an amendment into the reauthorization legislation for the Higher Education Act that would have required universities to police and report uses of illegal file sharing on their campuses. Specifically, the amendment would have required the U.S. Secretary of Education to create an annual report for Congress outlining which 25 Universities have received the most copyright infringement notices and forcing those universities to come up with and report a plan of action on how they planned to stop copyright infringement on their campuses. Opposed by educational institutions and trade groups, that amendment, drafted by Senate Majority Leader Harry Reid, was removed prior to the passage of the HEA reauthorization legislation 95 to 0.

Now the House, in a piece of legislation dubbed the "College Opportunity and Affordability Act," has placed the issue of file sharing in higher ed back onto the agenda.

Reports on the legislation, particularly a report by CNET, implied that the legislation would require colleges and universities to provide subscriptions to services like Ruckus and Napster as an alternative to illegal file sharing or else lose billions of dollars in financial aid. The report also stated, "According to the bill, if universities did not agree to test 'technology-based deterrents to prevent such illegal activity,' all of their students--even ones who don't own a computer--would lose federal financial aid." However, such wording is not in the actual legislation.

Buried in the College Opportunity and Affordability Act (but not appearing in the legislation's summary materials) is a whole section dealing with the illegal distribution of copyrighted material. Section 494, "Campus-Based Digital Theft Prevention," would require colleges and universities participating in any Title IV program to:
Make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and
Develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.
Developing a plan and implementing a plan are, of course, two different things. And the legislation does not provide any particular guidelines for the plans to be developed by colleges and universities. Nor does it specify that universities must provide subscriptions for students and employees to legal music download services.

It does, on the other hand, authorize the Secretary of Education to provide grants for universities and colleges to develop and implement plans for dealing with illegal file sharing beginning in 2009 and running through four subsequent years.

According to Section 494b:
The Secretary may make grants to institutions of higher education, or consortia of such institutions, and enter into contracts with such institutions, consortia, and other organizations, to develop, implement, operate, improve, and disseminate programs of prevention, education,  and cost-effective technological solutions, to reduce and eliminate the illegal downloading and distribution of intellectual property. Such grants or contracts may also be used for the support of a higher education centers that will provide training, technical assistance, evaluation, dissemination, and associated services and assistance to the higher education community as determined by the Secretary and institutions of higher education.
The legislation also requires, under Section 487, that universities and colleges annually disclose to students information about illegal file sharing, including potential civil and criminal liabilities, including a summary of federal penalties; a description of the institution's policies (if any) in regard to illegal file sharing; and a description of the actions the institution takes to prevent and detect illegal or unauthorized distribution of copyrighted material "on the institution's information technology system."

The legislation will be reviewed and marked up this week by the House Committee on Education and Labor. We will provide updates on any significant developments.

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About the Author

David Nagel is editorial director of 1105 Media's Education Technology Group and editor-in-chief of THE Journal and STEAM Universe. A 25-year publishing veteran, Nagel has led or contributed to dozens of technology, art and business publications.

He can be reached at [email protected]. You can also connect with him on LinkedIn at or follow him on Twitter at @THEJournalDave (K-12) or @CampusTechDave (higher education).

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