As you undoubtedly know, college campuses are, in many ways, ground zero for the battles being waged for the future of intellectual property. The thousands of Americans that have been sued by the entertainment industry in the past few years include countless students who were accused of illegally downloading music.

Although the lawsuits may have stopped, the entertainment industry lobbyists are still set on using any means necessary to stop music “piracy” – oftentimes regardless of the unintended consequences. One of those efforts was included in a 2008 law entitled the Higher Education Opportunity Act which requires institutions of higher learning to take a number of steps to protect the business models of the entertainment industry.

Earlier this week, EDUCAUSE hosted a very informative webcast about how to comply with these P2P provisions. What follows is a summary and some thoughts on what students can do at their school.

The P2P Provisions

Gregory Jackson of EDUCAUSE outlined the requirements of the law. Essentially there are:

1. An annual disclosure to students that copyright infringement subjects them to civil and criminal liabilities, a summary of the Federal penalties for copyright infringement, and a description of the school’s policies for copyright infringement.
2. The development of plans to effectively combat unauthorized distribution of copyrighted materials, including educating the community, procedures for handling transgressions, and employing at least one technological deterrents (such as bandwidth shaping, traffic monitoring, vigorously responding to DMCA notices, and 3rd party commercial products).
3. Offer, to the extent practical, legal alternatives to P2P downloading, as determined by the institution.

There are some good pieces: the law is explicit in the individual autonomy and authority of schools in deciding the particularities of their plan (though it is obviously mandatory to comply); furthermore, none of these requirements should “unduly interfere” with the educational and research use of the network.

The Role of Students

Although this law, which in many ways turns our schools into private copyright cops for the entertainment industry, was largely crafted without the input of one of the largest constituencies – students – there is still room for us to be involved.

Schools have until July of next year to finalize their plans for compliance. There is a wide latitude for many of the provisions, oftentimes ranging from minimally objective to overtly troublesome. Administrators who may feel pressure to over-comply need to be reminded of the interest of their students in maintaining an open and enabling network.

Oftentimes, school policy-makers are happy to hear from students. At the University of Michigan, their innovative BAYU system (which alerts students they are uploading) was crafted with support of the student government and is very popular. This is a promising procedural and product model for other schools to examine.

Obviously, there are many worrisome parts of this law – privacy concerns due to network monitoring, stiffing of speech through the overuse of DMCA take-downs, and the high costs of compliance, to name three. Therefore, it is especially important that student voices are heard on this topic.

Reach out to the administrators and technologists on campus – they’re only an email away – offering your help and reminding them how important it is to get these questions correct.

[If you are especially interested in university network policy, be sure to get involved with the Open University Campaign's effort to promote open networks at schools around the world.]

Last Friday, TechCrunch posted an article provocatively titled, Did Last.fm Just Hand Over User Listening Data To the RIAA?. Based on a friend-of-a-friend tip, the piece alleged that Last.fm had “handed over” user data to facilitate the identification of U2 fans with leaked copies of the band’s forthcoming album, No Line on the Horizon. (This was before Universal Music Group copped to leaking the album and U2 started streaming it voluntarily.)

Within an hour and a half – midnight for the London-based Last.fm – the allegations were debunked. Employees responded to concerned readers directly,

“[Last.fm would] never personally identify our users to a third party.”

Last.fm’s reputation is saved, TechCrunch are lying liars, the RIAA still sucks, and then I found five dollars. Right?

Not quite. Last.fm, purchased by CBS Interactive in 2007, represents the tension driving this era in computing culture, a constant negotiation of value and privacy. I’ll enrich your database by telling you how many times I’ve rewound Las Mulas De Moreno today (five and counting) and you tell me about similar artists to obsess over tomorrow.

Billboard and Soundscan look like halfblind guesswork in comparison with the charts made possible by this kind of deep data collection. Last.fm’s revenue may draw largely from advertising but if they were to start selling custom data packages to interested corporations, would anyone stop scrobbling?

Like many FCers, I was initially so alarmed at the notion that Last.fm would “hand over” user data that I ignored the fact that Last.fm’s core operations are basically in a constant state of dry snitching on its users. Want to know who is listening to “Las Mulas”? Click the Listeners tab, and start crawling profiles for identifying information.

For some of us, this is reason enough to cease participation. In fact, several FC members have already begun brainstorming a non-commercial, decentralized alternative. Others propose ruining the data reported to Last.fm by deliberately spoofing the scrobbler software with falsified metadata.

But what about those FCers who use Last.fm, enjoy the services it provides, and accept its exchange of privacy for value? Do we demand they sacrifice this pleasure? To what end?

Rather than struggle against enjoyment of Last.fm, what if we were to maximize it? What would an enthusiastic embrace and exploration of a service like Last.fm reveal? Would we find its boundaries and be inspired to develop a successor with even greater capacity? Would it reveal new entrepreneurial opportunities that better protect user privacy without sacrificing the potential benefits of an enormous dataset?

Is this a positive, proactive, fanatic activism? Or surrender to an uncritical consumption?

BOOMBOX from Ely Kim on Vimeo.

Consider the case of YouTube, where thousands of people have been recently burned by spurious copyright claims. Every day YouTube users create and upload videos like the one above that incidentally infringe one or more copyrights. Quite often the videos – again, like the one above – are disabled because of a DMCA takedown notice. If the email we receive at YouTomb is any indication, these users rarely intended to flaunt the law or make a stand for free culture. Rather, they come to us confused at being disciplined for behaving in a way that felt ethically appropriate.

When large copyright holding organizations attempt to withdraw from popular web services, as Warner Music Group has done with both Last.fm and YouTube, they can no longer paint the users of those services as pirates, outsiders, or radicals as they once did with Napster and now do with the Pirate Bay. Instead, their withdrawal brands them perverse, confused, and out of step with widely accepted social practice.

What implications might this reversal have for the free culture activist?

Do we want those YouTube users to familiarize themselves with the arcane constraints of copyright law and the numerous variations we’ve made available? Or should the users be left alone and the regulatory institutions be compelled to struggle with a set of laws and expectations ill-suited to contemporary media ethics?

Imagine a free culture pro-activism that consistently supports, encourages, defends, and extends the everyday practices of users of services like Last.fm and YouTube. What might we gain through such radical participation?

Ray Beckerman, the tireless attorney behind the Recording Industry vs. the People blog, has noted that the Obama Department of Justice has filed paperwork indicating that it may intervene to defend the Constitutionality of the huge statutory copyright damages being tested in the case (Sony BMG Entertainment Media v. Cloud).

Ray writes,

Procedurally, this will test whether President Obama’s announced policies against members of his administration participating in matters in which they were previously involved will be applied, since partners from Jenner and Block — the architects of the RIAA’s mass litigation campaign — now occupy the second and third highest positions in the new administration’s Department of Justice. According to the President’s announced policies, they should be recused from this case.

Substantively, this will also be an interesting test of whether the Obama administration is going to live up to the President’s pledge to stand up for the people, rather than for the big corporations.

Ray encourages everyone to contact President Obama urging him not to intervene in the case. The White House contact information is here and below is the quick note I submitted. Please do the same!

President Obama’s Department of Justice recent filed papers indicating that it may intervene in a current private dispute in Pennsylvania (Sony BMG Entertainment Media vs. Cloud). The case involved the Constitutionality of the statutory damages awarded in copyright infringment cases (which are thousands of times the size of the actual damage).

This development is worrying because two of the top officials in the Department of Justice (Thomas Perrelli and Don Verrilli), were previously employed as private attorneys for Song BMG and the Recording Industry Association of America (RIAA). As you know, President Obama has promised to prohibit members of his administration from participating in matters in which they previously participated. I am writing to discourage the DoJ from intervening in the case and to inquire as to how Mr. Perrelli and Mr. Verrilli will recuse themselves from a decisions involving the RIAA and this particular case.

Thank you and I look forward to your response.

From the good folks at Public Knowledge:

Hollywood’s lobbyists are running all over the Hill to sneak in a copyright filtering provision into the stimulus package. The amendment allow ISPs to “deter” child pornography and copyright infringement through network management techniques. The amendment is very, very controversial for a couple of reasons:

1. First, infringement can’t be found through “network management” techniques. There are legal uses for copyrighted works even without permission of the owner.
2. Second, it would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online.

You don’t need me to explain how bad this is. What we need is for everyone to contact Congress and voice your dissent. Head over to Public Knowledge and help now!

Well, crap, guys. How did we let this one slip by?

HR 4137, the College Opportunity and Affordability Act just passed Congress and is expected to be signed into law very soon.

Inside the bill is the Campus-Based Digital Theft Prevention act, a provision which requires colleges to subscribe to RIAA-approved services like the new Napster and to install software on the network which monitors and interrupt transfers which they decide they don’t like. This is a mandate for a non-neutral internet on college campuses. Students are being targeted by a cooperation between the government and the intellectual property industry to spy on us, filter our internet and the resources of our schools by spending our tuition costs on their DRM’d service. And unfortunately, we let this slip under the radar.

For the full story about the passing is available on Ars Technica, who have done a better write up than I could do. I also wrote about this on my personal site just over one year ago. It seems the bill has been watered down slightly from the original amendment, but the effect is the same.

But where was the opposition from Free Culture? I’m not trying to blame anyone but myself, but I think that we must develop a way to constantly monitor and publicly oppose this type of legislation. Otherwise, what is the point of our organization if we continue to allow things like this to happen?! We’re going to be an absolute laughing stock if we have silly events which celebrate the death of DRM when we don’t make a sound about federal legislation which requires all of our schools to purchase products which use it. There was only one blog post about the bill, 8 months ago. Not a peep since then, no page on the front page about pending legislation. So I can’t say that we missed this entirely, but a single blog post doesn’t affect anything outside of our own community, which is where the problem lies. It isn’t working because it isn’t enough.

So what are we supposed to do in the meantime?

First, I think we should develop a page (perhaps on the wiki?) and a squad to monitor the progress of legislation which could be a threat to us.

Second, we should be supporting Lawrence Lessig’s Change-Congress Movement which will stop corporations from having so much influence over Congressmen. Particularly Democratic congressmen from California.

Third, I would personally recommend that any student should be using secure protocols for all of their data transfers to prevent their being snooped on and tampered with. One such upcoming protocol is Anomos, a secure and anonymous multi-peer-to-peer file distribution platform. I’m a lead developer on this project and I will write a post on this blog about it once our alpha release candidate is announced.

Does anybody else have any ideas about steps we can take from things like this going unnoticed again? Let’s gets some discussion going in the comments.

Rich, Boston University Free Culture

Yesterday, Ray Beckerman, one of the attorneys behind the Recording Industry vs. the People, posted the new Stanford DMCA policy. The new policy has been criticized for assuming the RIAA is correct: following a primary DCMA take-down notice, Stanford will send an email to the allegedly offending student which must be answered within 48 hours to avoid paying a $100 network reconnection fee. Subsequent notices will result in automatic disconnection from the Stanford network and fines of $1,000.

After naming the supposed 25 top piracy schools and unleashing a storm of pre-litigation letters, the RIAA has received both acquiescence and backlash. The University of Nebraska has decided to bill the RIAA for the effort of tracking down supposedly infringing material. This is the job which Stanford alleges takes 3 employees; it just seems Stanford disagrees over who to charge. Ohio University has taken the most drastic action and banned all peer-to-peer networks on campus.

Needless to say, this should be particularly worrying for Free Culture members. Does your school have an amenable DMCA policy? Have you run into any particularly draconian ones?

[Cross posted on Copyrightings]

As we head into the last few days before Christmas and Hannukah (a.k.a. “the busiest shopping days of the year”), just a reminder: If you’re looking for any last many gifts, be sure to consult our RIAA-Free Gift Guides before you make any music purchases. Vote with your dollar, and give a gift you can feel good about.

Best fishes,
Gavin

Just in time for the holidays, FC.o members have started compiling gift guides of RIAA-free CDs. This is a great way to get some holiday gift ideas, as well as to support those who oppose the way that the Recording Industry Association of America does business.

A few examples of these lists are:
Gavin’s list (indie pop/rock, electronic) PDF
Karen’s list (indie, blues, random)
Dan’s list (indie)

Here are Gavin’s instructions on making and submitting an RIAA-free CD Holiday Gift Guide

So, if you want to make a list, here’s what to do:

1. Make a list of 10 non-RIAA CDs (check riaaradar.com and the members list on riaa.com — neither list is perfect because the RIAA lies, go figure.)
2. You can have a theme for your list, or not — it’s up to you.
3. Try not to have more than 1 CD by the same band or more than 2 CDs from the same label.
4. Don’t use a CD that somebody else has used.
5. These should be CDs you could reasonably find in a record store or some place like amazon.com.

Not sure where to start? There are some lists on riaaradar.com that might give you some ideas (poke around). “Major” labels that are non-RIAA include Sub Pop, Matador, Merge, and Kill Rock Stars. Two bands I thought about using in my list, but didn’t, are Bloc Party and Mates of State — so there’s 2 ideas right there.

Note that we are listing CDs, not bands — bands often switch labels, sometimes jumping to RIAA members. Occasionally the same CD will be re-released by a RIAA member; make sure you list the non-RIAA release.

Your list should include:
* 10 CDs with artist and title, and if possible, year and label
* a brief description of each CD or why you like it. (these can be wordier than mine)
* your name, age, school (if applicable), and a list of 3 likes OR 3 dislikes — serious or cute
* a 150×150 px photo of you. I can crop and resize if necessary, but if you want it look the way you want, you better do it yourself! jpg preferred, send a link or as attachment

In order to submit a list, email it to freedom@freeculture.org. More information can also be found at freeculture.org/riaafree/.